2007 Federal Register, 72 FR 37346; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: July 9, 2007 (Volume 72, Number 130)]
[Rules and Regulations]
[Page 37345-37372]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy07-6]

[[Page 37345]]

-----------------------------------------------------------------------

Part III

Department of the Interior

-----------------------------------------------------------------------

Fish and Wildlife Service

-----------------------------------------------------------------------

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle
in the Lower 48 States From the List of Endangered and Threatened
Wildlife; Final Rule; Endangered and Threatened Wildlife and Plants;
Draft Post-Delisting and Monitoring Plan for the Bald Eagle (Haliaeetus
leucocephalus) and Proposed Information Collection; Notice

[[Page 37346]]

-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF21

Endangered and Threatened Wildlife and Plants; Removing the Bald
Eagle in the Lower 48 States From the List of Endangered and Threatened
Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The best available scientific and commercial data indicate
that the bald eagle has recovered. Therefore, under the authority of
the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish
and Wildlife Service, remove (delist) the bald eagle (Haliaeetus
leucocephalus) in the lower 48 States of the United States from the
Federal List of Endangered and Threatened Wildlife. This determination
is based on a thorough review of all available information, which
indicates that the threats to this species have been eliminated or
reduced to the point that the species has recovered and no longer meets
the definition of threatened or endangered under the Act.
Fueled by a reduction in the threats to the bald eagle, the
population in the lower 48 States has increased from approximately 487
breeding pairs in 1963, to an estimated 9,789 breeding pairs today. The
recovery of the bald eagle is due in part to the reduction in levels of
persistent organochlorine pesticides (such as DDT) occurring in the
environment and habitat protection and management actions. The
protections provided to the bald eagle under the Bald and Golden Eagle
Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA) will
continue to remain in place after the species is delisted. To help
provide more clarity on the management of bald eagles after delisting,
we recently published a regulatory definition of ``disturb'', the final
National Bald Eagle Management Guidelines and a proposed rule for a new
permit that would authorize limited take under BGEPA and grandfather
existing Act authorizations.

DATES: This rule is effective August 8, 2007.

FOR FURTHER INFORMATION CONTACT: Chief, Branch of Recovery and
Delisting, telephone (703) 358-2061 or facsimile (703) 358-1735.
Additional information is also available on our Web site at http://www.fws.gov/migratorybirds/BaldEagle.htm.
Individuals who use a

telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 1-800-877-8339 for TTY assistance, 24 hours a day, 7 days a
week.

SUPPLEMENTARY INFORMATION:

Background

Information about the bald eagle's life history can be found in our
February 16, 2006, reopening of the public comment period on the
proposed delisting rule (71 FR 8238) (U.S. FWS 2006a) and our five
recovery plans for the bald eagle (U.S. FWS 1982, 1983, 1986, 1989,
1990), Gerrard and Bortolotti (1988), and Buehler (2000).

Previous Federal Actions

Bald eagles gained protection under the Bald Eagle Protection Act
(16 U.S.C. 668-668d) in 1940 and the Migratory Bird Treaty Act (MBTA)
(16 U.S.C. 703-712) in 1972. A 1962 amendment to the Bald Eagle
Protection Act added protection for the golden eagle and the amended
statute became known as the Bald and Golden Eagle Protection Act
(BGEPA).
On March 11, 1967 (32 FR 4001), the Secretary of the Interior
listed bald eagles south of 40 north latitude as endangered under the
Endangered Species Preservation Act of 1966 (Pub. L. 89-699, 80 Stat.
926) due to a population decline caused by DDT and other factors. On
February 14, 1978, the Service listed the bald eagle as endangered
under the Act (16 U.S.C. 1531 et seq.) in 43 of the contiguous States,
and threatened in the States of Michigan, Minnesota, Wisconsin, Oregon,
and Washington (43 FR 6230, February 14, 1978). Sub-specific
designations for northern and southern eagles were removed.
On February 7, 1990, we published an advance notice of proposed
rulemaking (55 FR 4209) to reclassify the bald eagle from endangered to
threatened in the 43 States where it had been listed as endangered and
retain the threatened status for the other 5 States. On July 12, 1994,
we published a proposed rule to accomplish this reclassification (59 FR
35584), and the final rule was published on July 12, 1995 (60 FR
36000).
On July 6, 1999, we published a proposed rule to delist the bald
eagle throughout the lower 48 States due to recovery (64 FR 36454). Due
to the availability of new information, on February 16, 2006 (71 FR
8238), we reopened the public comment period on our July 6, 1999 (64 FR
36454), proposed rule to delist the bald eagle in the lower 48 States.
The reopening notice contained updated information on several State
survey efforts and population numbers. Simultaneously with the
reopening of the public comment period on the proposed delisting, we
also published two Federal Register documents soliciting public
comments on two new items intended to clarify the BGEPA protections for
the bald eagle after delisting: (1) A proposed rule for a regulatory
definition of ``disturb'' (71 FR 8265, February 16, 2006), and (2) a
notice of availability for draft National Bald Eagle Management
Guidelines (71 FR 8309, February 16, 2006). On May 16, 2006, we
published three separate notices in the Federal Register that extended
the public comment period on the proposed delisting (71 FR 28293), the
proposed regulatory definition of ``disturb'' (71 FR 28294), and the
draft Guidelines (71 FR 28369). The comment period for all three
documents was extended to June 19, 2006.
On December 12, 2006, we published in the Federal Register a notice
requesting public comment on two BGEPA items. First, we re-opened the
public comment period on our February 16, 2006, proposed regulatory
definition of ``disturb.'' Second, we also announced the availability
the draft environmental assessment on the definition of ``disturb'' (71
FR 74483).
On October 6, 2004, we received a petition, dated October 6, 2004,
from the Center for Biological Diversity, the Maricopa Audubon Society,
and the Arizona Audubon Council requesting that the bald eagle
population found in the Sonoran Desert (as defined by Brown 1994) or,
alternately, in the upper and lower Sonoran Desert (as defined by
Merriam (Northern Arizona University 2006, p. 2)) be classified as a
distinct population segment (DPS), that this DPS be reclassified from a
threatened species to an endangered species, and that we concurrently
designate critical habitat for the DPS. On August 30, 2006, we made a
90-day finding (71 FR 51549) that the petition did not present
substantial scientific or commercial information indicating that the
petitioned action may be warranted.
On January 5, 2007, the Center for Biological Diversity and the
Maricopa Audubon Society brought suit against the Service, Center for
Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz.),
challenging the Service's 90-day finding that the Sonoran Desert
population did not qualify as a DPS, and further challenging the
Service's 90-day finding that the Sonoran Desert population should not
be up-listed to endangered

[[Page 37347]]

status. That suit is still pending. However, the Service's finding in
this final delisting rule supersedes the Service's 90-day petition
finding because it constitutes a final decision on whether the
Southwestern bald eagles, including those in the Sonoran Desert,
qualify for listing as a DPS. This decision was made after notice and
comment, as described above, and was based on all of the relevant
information that the Service has obtained. Even if the court in the 90-
day finding suit were to find that the plaintiffs' petition warranted
further review, this finding addresses the same issues that the Service
would have considered as part of a 12-month finding had the Service
made a positive 90-day finding on the petition. This document
constitutes the Service's final determination on these issues, and is
judicially reviewable with respect to them; therefore, any controversy
regarding the August 30, 2006, 90-day finding is now moot.
On June 5, 2007, we published four documents in the Federal
Register announcing one proposed action and three final actions under
the BGEPA: (1) A final rule on the regulatory definition of ``disturb''
(72 FR 31132); (2) a notice of availability for the final National Bald
Eagle Management Guidelines (72 FR 31156); (3) a notice of availability
for the final environmental assessment on the definition of ``disturb''
(72 FR 31156); and (4) a proposed rule for a new permit that would
authorize limited take under BGEPA, and to grandfather existing Act
authorizations after delisting occurs under the Act (72 FR 31141).

Bald Eagle Recovery

Section 4(f) of the Act directs us to develop and implement
recovery plans for listed species. In establishing the recovery program
for the species in the mid-1970s, the Service divided the bald eagle
population in the lower 48 States into five recovery regions. These
recovery regions were administrative boundaries to help the Service
plan for recovery, given the information we had at the time. During
this timeframe the bald eagle population was continuing to decline and
little was known about where the important areas might be. Given the
lack of information on this issue, the Service generally decided that
recovery planning should be conducted in all parts of the range.
However, as discussed below in the Conclusion of the 5-Factors analysis
section, based on the information present today, the southwest region
is a not a significant portion of the range.
In some cases, we appoint experts to recovery teams to assist in
the preparation of recovery plans. For the bald eagle, separate
recovery teams composed of experts in each geographic area prepared
recovery plans for their region. The teams established recovery
objectives and criteria and identified tasks to achieve those
objectives. Coordination meetings were held regularly among the five
teams to exchange data and discuss progress towards recovery.
We used these five recovery plans to provide guidance to the
Service, States, and other partners on methods to minimize and reduce
the threats to the bald eagle and to provide measurable criteria that
would be used to help determine when the threats to the bald eagle had
been reduced so that the bald eagle could be removed from the Federal
List of Endangered and Threatened Wildlife.
Recovery plans in general are not regulatory documents and are
instead intended to provide a guide on how to achieve recovery. There
are many paths to accomplishing recovery of a species in all or a
significant portion of its range. The main goal is to remove the
threats to a species, which may occur without meeting all recovery
criteria contained in a recovery plan. For example, one or more
criteria may have been exceeded while other criteria may not have been
accomplished. In that instance, the Service may judge that, overall,
the threats have been reduced sufficiently, and the species is robust
enough, to reclassify the species from endangered to threatened or
perhaps to delist the species. In other cases, recovery opportunities
may be recognized that were not known at the time the recovery plan was
finalized. Achievement of these opportunities may be counted as
progress toward recovery in lieu of methods identified in the recovery
plan. Likewise, we may learn information about the species that was not
known at the time the recovery plan was finalized. The new information
may change the extent that criteria need to be met for recognizing
recovery of the species. Overall, recovery of species is a dynamic
process requiring adaptive management, and judging the degree of
recovery of a species is also an adaptive management process that may,
or may not, fully follow the guidance provided in a recovery plan.
Recovery of the bald eagle has been a dynamic process. As new
information became available, it was used during the recovery
implementation process to help the Service determine whether recovery
was on track. For instance, after the bald eagle was downlisted in
1995, the Southeastern Recovery Plan did not have specific delisting
goals, and the Service used the recovery team to help determine the
appropriate goal. This new delisting goal is considered the best
available data in helping the Service determine whether the threats
have been removed and to move forward with the delisting.
All of the bald eagle recovery plans established goals for the
number of occupied breeding areas and the productivity of the
populations in the individual recovery regions. By setting a goal to
monitor population numbers and productivity, the Service could
determine whether the threats that led to the bald eagle's endangerment
were being removed. With the reduction in levels of persistent
organochlorine pesticides (such as DDT) occurring in the environment
and the habitat protection and management actions that have been put in
place, the bald eagle population has shown a remarkable increase in
numbers. Between 1990 and 2000, the bald eagle population had a
national average productivity of at least one fledgling per nesting
pair per year. As a result, the bald eagle's nesting population
increased at a rate of about 8 percent per year during this time
period. Since 1963, when the Audubon Society estimated that there were
487 nesting pairs, bald eagle breeding in the lower 48 States has
expanded to more than 9,789 nesting pairs today (U.S. FWS 1995, p.
36001; U.S. FWS 1999, p. 36457.)
Some States have shown increases in their bald eagle pairs over the
past several years. For example, Illinois had an estimated 36 pairs in
1999, but the State had an estimated 100 pairs in 2006 (Conlin 2006, p.
1). Iowa had an estimated 100 pairs in 1999, and their bald eagle
population has doubled to an estimated 200 pairs in 2006 (Vonk 2006, p.
1). Minnesota had an estimated 681 pairs in 2001, and an estimated
1,312 pairs in 2005 (Moore 2006, p. 1). In recent decades, Vermont was
the only State in the conterminous United States that did not have
nesting bald eagles. In 2006, a pair of bald eagles nested in Vermont
for the first time since the 1940s, and now Vermont has one nesting
pair (Amaral 2006, p. 3). To date, the bald eagle's population growth
has exceeded all the numeric goals established in the five recovery
plans. In most of the recovery regions, the numeric goals for breeding
pairs have been significantly exceeded. For example, the delisting goal
in the Northern States Recovery Plan calls for 1,200 breeding pairs
distributed over a minimum of 16 States. Today, there are an estimated
4,215 breeding pairs covering every State in that recovery region.
BILLING CODE 4310-55-P

[[Page 37348]]

[GRAPHIC] [TIFF OMITTED] TR09JY07.000

[[Page 37349]]

[GRAPHIC] [TIFF OMITTED] TR09JY07.001

BILLING CODE 4310-55-C

[[Page 37350]]

For more information on recovery of the bald eagle in general and
specific recovery of the individual recovery areas, see the discussion
on pages 8240-8243 of the February 16, 2006, reopening of the public
comment period on the proposed rule to delist the species (71 FR 8238).

Summary of Comments and Recommendations

We requested written comments from the public on February 16, 2006
(71 FR 8238), when we reopened the public comment period on our July 6,
1999 (64 FR 36454), proposed rule to delist the bald eagle in the lower
48 States. In that reopening notice, we responded to comments
previously received on the July 6, 1999 (64 FR 36454) proposed
delisting rule. Therefore, the preamble to this final rule addresses
only the comments we received on the February 16, 2006, notice. The
comment period was reopened from February 16, 2006, to May 17, 2006.
During that time, we received two requests to extend the public comment
period. In response to those requests, on May 16, 2006 (71 FR 28293),
we extended the public comment period to June 19, 2006. As part of the
reopening of the public comment period, we also contacted the States
and Tribes to solicit their comments.
In conformance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we solicited opinions from three scientific experts
who are familiar with this species to peer review the proposed rule. We
received comments from two of the three peer reviewers, and those two
peer reviewers convened panels of scientific experts to review the
information provided. Their comments are included in the summary below.
One peer reviewer generally supported the proposed delisting, and the
other peer reviewer did not.
We reviewed all comments received from the peer reviewers, State
and Tribal agencies, and the public for substantive issues and new
information regarding the proposed delisting. We received a total of
387 new comments.
Section 4(b)(1)(A) of the Act requires that determinations as to
whether any species is a threatened or endangered species shall be made
``solely on the basis of the best scientific and commercial data
available,'' including all information received during the public
comment period. Comments merely stating support or opposition to the
proposed delisting without providing supporting data, although noted,
were not considered substantial and therefore were not considered in
our determination. Substantial comments received during the comment
period have either been addressed below or incorporated directly into
this final rule.

Peer Review Comments

Issue: Several commenters, including one of the peer reviewers,
stated that threat of habitat loss, including foraging, breeding, and
wintering/roosting habitat (including communal roosting areas), due to
development will continue because there are no adequate habitat
protections (existing regulatory mechanisms) for bald eagles after
delisting. One peer reviewer acknowledged that BGEPA and MBTA provide
protection to birds, their nests, and eggs, but opined that those
statutes offer no protection to habitat. In addition, the commenters
believed that the proposed regulatory definition of ``disturb'' and the
draft National Bald Eagle Management Guidelines will not be adequate to
provide habitat protection. One peer reviewer expressed an opposite
opinion stating that the proposed BGEPA definition and guidelines
provide an adequate framework for protecting eagles and their habitat
using BGEPA and MBTA.
Response: As discussed in detail under Factor A, the bald eagle
population is continuing to increase in the lower 48 States, showing
that reduced availability of habitat is not a current threat to the
species. Nesting habitat is secure on many public and private locations
throughout the lower 48 States. We acknowledge that some habitat
threats continue to exist. However, this localized habitat loss will be
limited by the operation of various Federal laws that will remain in
effect after delisting (e.g., BGEPA, MBTA, and the Clean Water Act
(CWA)).
The commenters are correct in that the BGEPA contains no provisions
that directly protect habitat, except for nests. However, as further
discussed under Factor A below, individual bald eagles are protected
from certain effects that are likely to occur as the result of various
human activities, including some habitat manipulation. Activities that
disrupt eagles at nests, foraging areas, and important roosts can
wound, kill, or disturb eagles, all of which are prohibited by the
BGEPA. Through promulgation of the regulatory definition of disturb (72
FR 31132; June 5, 2007) and issuance of the National Bald Eagle
Management Guidelines (72 FR 31156; June 5, 2007), we have clarified
that eagle nests, important foraging areas, and communal roost sites
are afforded protection under the BGEPA to the degree that adjacent
habitat modification would disturb, injure, or kill eagles.
Issue: One of the peer reviewers stated that the final delisting
rule should include a list of updated population data by State with
references to the survey from which the data were obtained.
Response: We have included an updated national population estimate
in this final rule along with a map with the estimated number of
breeding pairs per State. To ensure that our determination on the
status of the bald eagle was based ``solely on the basis of the best
scientific and commercial data available'' as required by the Act, we
used State population data provided to us directly by a State agency,
the Pacific Flyway Council, or from a State Web site. Based on this
information, there are an estimated 9,789 bald eagle pairs in the lower
48 States. We believe this is a conservative estimate based on the
results of our pilot studies for the post-delisting monitoring plan
(USFWS 2007). For example, in the pilot study conducted by Minnesota,
872 known nest sites were observed as occupied in 2005. Incorporating
the use of area random plots for our pilot study, Minnesota's estimate
of nesting bald eagle pairs increased to 1,312. Minnesota estimates
that their known nest survey, which is similar to those conducted by
each of the States and used to produce data for the delisting, may only
count two-thirds of the breeding pairs in the State (Moore 2006, pp. 1-
2).
Issue: Both peer reviewers expressed concern about using out-dated
recovery plans and delisting criteria. One peer reviewer recommended
that the delisting criteria in the recovery plan for Southeastern
United States bald eagles should be peer reviewed before finalizing the
delisting. One commenter thought the Service should seek more advice
from the recovery team members.
Response: Recovery plans are not regulatory documents and are
instead intended to provide guidance to the Service, States, and other
partners on methods of minimizing threats to listed species and on
criteria that may be used to determine when recovery is achieved. There
are many paths to accomplishing recovery of a species, and recovery may
be achieved without fully meeting all criteria in a recovery plan.
Overall, recovery of species is a dynamic process requiring adaptive
management, and judging the degree of recovery of a species is also an
adaptive management process that may, or may not, fully follow the
guidance provided in a recovery plan.
Over the years, the Service sought advice from several recovery
teams. In the Southeast, we used the advice of the recovery team to
give us a population target that would indicate that the threats had
been reduced. We believe

[[Page 37351]]

this is the best available information at this time.
Issue: One peer reviewer and several commenters noted concern over
the viability of the Southwest population of bald eagles based on low
numbers of breeding pairs, relatively low productivity, relatively high
adult mortality, and threats of habitat alteration and human
disturbance. Based on this information, the peer reviewer recommended
designating the population as a DPS and deferring the delisting.
Response: As further discussed in the Summary of Factors Affecting
the Species section, the Service does not believe the bald eagle
population in the Southwest meets the criteria stated in our DPS policy
(61 FR 4722; February 7, 1996), nor is this population a significant
portion of the range of the lower 48 States population of bald eagles.
Therefore, consideration of the viability of, or threats to, the
Southwestern population, standing alone, is not relevant to the
delisting determination for the lower 48 States bald eagle population.
Issue: Several commenters, including peer reviewers, commented that
a post-delisting monitoring (PDM) plan should be in place when
delisting occurs and should remain in effect longer than 5 years. In
addition, the plan should be comprehensive and scientifically based to
monitor changes in population, productivity, wintering populations,
habitat, and contaminants.
Response: Based on comments from the 1999 proposed delisting rule,
we have been working steadily on the development of a revised national
post-delisting monitoring plan, including conducting several pilot
studies in cooperation with the States, to produce a monitoring plan
that will be more scientifically robust than previously proposed in the
1999 proposed delisting rule. We have modified the draft post-delisting
monitoring plan to take into account the life cycle of the bald eagle.
We are making the revised draft of the monitoring plan is available
for public comment simultaneously with this rule elsewhere in today's
Federal Register. We agree that a plan should ideally be in place at
the time of delisting; however, given the proposed 20-year monitoring
effort, we believe the plan will be finalized in a sufficient amount of
time to adequately monitor the status of the species after delisting.
Given the continued increase in the population, we do not expect a
precipitous decline over the short term, prior to our completion of the
final monitoring plan.

Other Comments

Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range

Issue: One commenter stated that the delisting criteria have not
been met for habitat protection in the Chesapeake Bay region. Another
commenter stated that while lands have been protected in the Chesapeake
Bay Recovery Region to sustain the targeted levels of breeding pairs,
the proposed delisting does not address protection of summer and winter
concentration areas. The commenter noted that neither the Service's
National Wildlife Refuges nor State management areas provide enough
land to provide the necessary concentration areas. Another commenter
stated that habitat loss and development are not limiting factors in
Maryland, and are not likely to cause endangerment in the future. The
commenter believes that the Chesapeake Bay Critical Area Program will
continue to conserve forested shoreline habitat, and that it is not
necessary for us to fully meet the habitat preservation goals in the
Chesapeake Bay Recovery Plan.
Response: The Chesapeake Bay bald eagle population has experienced
significant growth over the past 30 years. Within the Chesapeake Bay
Bald Eagle Recovery Region, approximately 280 nests occur on Federal or
State lands (48 nests from Koppie 2007b and 230 nests from Otto 2007).
In addition to the long term habitat protection afforded on these
lands, nearly 200 other nests occur within areas regulated by the
Maryland Critical Areas Act (Koppie 2007b), which is discussed below.
Together, these areas will continue to play active roles in providing
additional protection of nests, nest buffers, forest blocks, and
roosting habitat for bald eagles in the foreseeable future.
Habitat loss is still likely to occur in this region in the
foreseeable future through incremental land clearing. It is projected
that between 1978 and 2020, the developed area of the Chesapeake Bay
watershed will increase by 74 percent in Maryland and 80 percent in
Virginia (Gray et al. 1988). The Service acknowledges ongoing shoreline
development will continue for the foreseeable future, which will likely
set limits on the rate of future expansion and overall population
growth of the bald eagle in the Chesapeake Bay region. Bald eagle
nesting pairs currently continue to increase despite the increased
construction of new homes, business parks, boat marinas, and other
infrastructure within habitats sustaining bald eagles. Therefore, it
appears that unoccupied forested habitat currently still remains
available, leading to the conclusion that the species has not yet
reached the carrying capacity limits for nesting eagle pairs in the
Chesapeake Bay region. The Service anticipates a continued upward
population growth at least through the next decade based on the
availability of habitat and behavioral adaptation. In addition, bald
eagles have been able to adapt to higher densities of birds by
decreasing the size of nesting territories in certain areas of the
region where birds are starting to saturate the habitat. At some point,
the Service expects the growth rate to decrease and level off,
establishing a population that is stable over the long term.
A study published in 1996 used modeling to predict that the
population of bald eagles in the Chesapeake Bay region would increase
until reaching carrying capacity, after which there would be a rapid
decline of the population (Fraser et al. 1996, p. 185). However, we
find that model to be unpersuasive for a number of reasons. First, it
predicts that a decline might have begun by about 2005, but bald eagle
numbers continue to increase in the Chesapeake Bay area. In Maryland,
the population has increased from 338 breeding pairs to 400 between
2003 and 2004, and in Virginia bald eagle pairs increased from 371 to
485 between 2003 and 2006.
Second, the predictive model showing a decline in the Chesapeake
Bay bald eagle population does not take into account nest protection
measures or refugia such as State and Federal wildlife refuges (Fraser
et al. 1996, p. 185). In Virginia, the Eastern Virginia Rivers National
Wildlife Refuge Complex was established to protect bald eagle nesting
sites and communal roost sites that are part of concentration areas
along the Rappahannock and James rivers. These refuges are within the
Rappahannock River Watershed and the James River Watershed, which hold
approximately half of Virginia's nesting population of bald eagles. In
addition, the first ``eagle refuge,'' Mason Neck National Wildlife
Refuge, was established to protect bald eagles along the Potomac River
in 1967. In Maryland, communal roost sites and nesting areas are
protected at the U.S. Army Aberdeen Proving Ground, Blackwater National
Wildlife Refuge, Naval Surface Warfare Center at Indian Head, and an
area below the Conowingo Dam along the Susquehanna River. All these
areas (excluding the Conowingo Dam) are located within forested
habitats on federal lands and therefore have long term protection, as
explained under Factor A (Koppie 2007a).

[[Page 37352]]

Third, the model does not take into account the increase in bald
eagle tolerance to human disturbance. The Service has documented
several cases in which bald eagles around the Chesapeake Bay have
continued to nest and successfully produce young within distances that
were previously considered too close to human activity (Koppie 2007a).
In addition, in both Virginia and Maryland, compression of nesting
territories (i.e., eagles nesting in closer proximity to each other
than in recent decades) has been observed, suggesting that the density
of nesting pairs can be higher than once documented (Koppie 2007a).
In addition, certain State authorities and programs may afford
additional, unquantifiable habitat protection. For example, in Maryland
the Critical Area Act covering the Chesapeake Bay and Atlantic Coastal
Bays enables the State and local governments to jointly address the
impacts of land development on habitat and aquatic resources. This
program can indirectly protect bald eagle habitat by, among other
things, categorizing predominant land uses, focusing new development
towards existing developed areas, and designating natural resource
areas, habitat protection areas and buffers. These measures may reduce
the rate of bald eagle habitat alteration depending on how they are
employed across the landscape. To the extent that the Critical Areas
program is maintained, it has the potential to contribute to forested
shoreline preservation within 1,000 feet of the Chesapeake and Atlantic
Coastal Bays where upwards of 70 percent of Maryland's eagles nest
(Koppie 2007b).
There are currently an estimated 1,093 breeding pairs in the
Chesapeake Bay Recovery Region. Habitat loss is still likely to occur
in the Chesapeake Bay region in the foreseeable future. However, based
on the number of nests and associated habitat found on protected lands,
the existence of refuges and other lands specifically to conserve
concentration and foraging areas, the availability of additional
unoccupied habitat, behavioral adaptation, potentially increased
compression of nesting territories, and the continuation of protection
under BGEPA (as discussed under Factor A), we do not expect the bald
eagle population in the Chesapeake Bay area to decline below the
recovery target of 300-400 nesting pairs in the foreseeable future.
Similarly, we do not anticipate that habitat loss will have a
significant negative impact on important concentration areas.
Issue: Eagles have not recovered in the Southwestern United States.
They are threatened with oil and gas development. The Bureau of Land
Management is allowing gas wells and pipelines to be constructed in
prime eagle habitat, and it will only get worse after delisting. For
example, the Bureau of Land Management is allowing gas wells and
pipelines to be constructed in prime bald eagle habitat around Navajo
Reservoir.
Response: We do not have any data to indicate that oil and gas
development is currently threatening the future security of the bald
eagle or its habitat in the Southwest. The Bureau of Reclamation
manages the land around the Navajo Reservoir, and the Resource
Management Plan includes areas specifically designated to protect bald
eagles (U.S. BR 2005, p. 2-2, map 2-1). We believe the measures
described in the Resource Management Plan will provide adequate
protections for bald eagles and their habitat around the Navajo
Reservoir after delisting.
Issue: One commenter stated that the final rule needs to include a
discussion on the declines in some fisheries as a past and present
concern. For example, the demise of a kokanee salmon run in Glacier
National Park ended a large autumn aggregation of bald eagles in that
area. Declines in alewives and herring in Maine have also restricted
eagle aggregations.
Response: Bald eagle populations have increased despite isolated
declines in local fish populations. As opportunistic feeders, bald
eagles will move to alternative food sources, particularly during the
non-nesting season. Therefore, we do not believe this is a threat that
would limit the population of bald eagles in the lower 48 States, or a
significant portion of its range in the foreseeable future such that
continued protection under the Act would be warranted.
Issue: One commenter felt that a State-level management plan for
bald eagles in the Southwest Recovery Region was needed because the
Arizona Bald Eagle Nestwatch Program will likely disappear after
delisting.
Response: The Conservation Assessment and Strategy for the Bald
Eagle in Arizona has been developed by the Arizona Game and Fish
Department, cooperating agencies, and Tribes to continue management
practices for the bald eagle after delisting, including the Bald Eagle
Nestwatch Program (Driscoll et al. 2006, pp. 1, 33). As we stated in
our August 30, 2006, petition finding, the Arizona Bald Eagle Nestwatch
Program will likely remain in place because the funding comes from a
variety of sources, including State wildlife grants, donations, Arizona
Game and Fish Department's Heritage Funds (State lottery), and matching
funds for Federal grants. In any case, there is no specific requirement
under the Act for a State management plan.
Issue: BGEPA does not require landowners or developers to provide
notification of their projects that may affect eagle nests. BGEPA and
MBTA only come into effect after discovery of an infringement. There
currently is no mechanism under BGEPA to allow for lawful activities
(such as transportation construction and maintenance) to proceed. Left
without options, landowners will be very tempted to cut down nest trees
rather than lose the use of their property.
Response: Actions that result in take as defined under BGEPA or
MBTA are prohibited unless permitted by the Service. Thus, such
notification is not required under either statute, but an action
resulting in take is prohibited nonetheless. As currently occurs under
the Act, providing such notification may be in the interest of a
project proponent as it can help them avoid potential legal liabilities
from enforcement of BGEPA or MBTA. We believe that working
cooperatively with landowners to avoid or minimize adverse impacts to
bald eagles is likely to achieve more positive conservation than
reliance on regulatory enforcement. In addition, we have proposed a
program that would allow us to authorize limited take associated with
otherwise lawful activities under BGEPA (72 FR 31141; June 5, 2007),
similar to the incidental take authorizations that we have made under
sections 7 and 10 of the Act.

Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Issue: Poaching and illegal trade of bald eagle parts is still a
threat that will increase if the bald eagle is delisted.
Response: There is no legal commercial or recreational use of bald
eagles, and such uses of bald eagles will remain illegal under various
statutes, as described under Factor B below. We consider current laws
and enforcement measures apart from the Act sufficient to protect the
bald eagle from illegal activities, including poaching and illegal
trade.
Issue: Eagle parts and feathers should continue to be available for
Native American religious and cultural needs. If the bald eagle is
delisted, Native Americans should be given priority for eagle parts and
feathers.
Response: To respond to the religious needs of Native Americans, in
the early 1970s, we established the National Eagle Repository in
Commerce City, Colorado,

[[Page 37353]]

which serves as a collection point for dead raptors, including bald
eagles. As a matter of policy, all Service units transfer salvaged bald
eagle parts and carcasses to this repository. Federal and State
conservation agencies, zoological parks, rehabilitators, and others who
may legally possess and transport dead bald and golden eagles are
encouraged to send the dead birds, and their parts, to the repository
so they can be utilized by federally recognized Native American Tribes
(16 U.S.C. 668a and 50 CFR 22.22).
Native Americans are given priority for eagle parts and feathers,
and only members of Federally recognized tribes can obtain a permit
from us authorizing them to receive and possess whole eagles, parts, or
feathers from the repository for religious purposes. This policy is
authorized by the provisions of BGEPA and will continue after
delisting.

Issue: One commenter did not want the bald eagle delisted due to
the importance of the bald eagle to Native American religious and
spiritual practices and ceremonies. Another commenter recommended
continuing the Act's protections until recovery had been achieved such
that Native Americans no longer need a permit for Indian religious
activities. Several commenters stated that Native Americans should not
be allowed to sacrifice eagles, even if doing so is for religious
ceremonies.
Response: As required by the Act, we are delisting the bald eagle
because it no longer meets the definition of a threatened species; the
bald eagle will continue to be protected under the BGEPA and MBTA once
it is delisted. These statutes prohibit unauthorized take and require
permits for limited designated uses of eagles, their parts, and related
items. The BGEPA expressly authorizes issuance of permits to take bald
eagles for the religious purposes of Indian tribes. We will continue to
issue only permits that we determine are consistent with the
preservation of the bald eagle.

Factor C. Disease or Predation

Issue: One commenter stated that avian influenza is a threat to the
bald eagle and that it should be thoroughly discussed in the delisting
rule. Another commenter was concerned about the threats to bald eagles
from other diseases such as avian vacuolar myelinopathy, West Nile
virus, and raptor beak overgrowth syndrome.
Response: The Department of the Interior is currently testing
migratory birds for the presence of H5N1 high path avian influenza. At
this time, there are no confirmed cases of migratory birds, including
bald eagles, testing positive for avian influenza in the United States
(USGS 2007a). At least 80 bald eagles and possibly thousands of
American coots have died from avian vacuolar myelinopathy since it was
discovered in 1994 at DeGray Lake in Arkansas. Studies on avian
vacuolar myelinopathy are continuing, but the cause is still unknown
(USGS 2007b). These and other diseases may affect individual bald
eagles at the local level, but as discussed below under Factor C, are
not considered to be a significant threat to the overall bald eagle
population.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

Issue: Several commenters were concerned that many States and local
jurisdictions will remove the protections for the bald eagle after
delisting. One commenter stated that Memoranda of Agreement should be
in place between the Service and the States to provide protection for
the bald eagle after delisting. One commenter wanted to make sure that
States with small bald eagle populations will still provide protection
after delisting. One State government commented that State laws provide
little habitat protection. Several States indicated that they will play
a large role in bald eagle conservation after delisting.
Response: Some States will likely maintain the sensitive status of
the bald eagle under individual State laws; however, such protection is
not needed to assure that the bald eagle population in the lower 48
States will continue to be a viable population after delisting. As
described in the discussions of Factors A and B below, the Service
believes that BGEPA and other Federal laws that will remain in place
after delisting provide the necessary protections in the future for a
recovered bald eagle population. Many States have developed State-
specific management plans, regulations, and/or guidance for landowners
and land managers to protect and enhance bald eagle habitat, and we
encourage the continued development and use of these planning tools to
benefit bald eagles. Such measures can only offer more protection for
bald eagles than is already offered by BGEPA and MBTA. The States will
play a key role in continuing to monitor bald eagles in the lower 48
States to make sure that the species continues to maintain its
recovered status.
Issue: One commenter asserts that BGEPA and MBTA will continue to
protect bald eagles after delisting, and, because of these protections,
bald eagles will likely become overpopulated in some areas of the
country.
Response: The bald eagle has not yet reached carrying capacity in
many parts of its range, and we anticipate that the population will
continue to increase in these areas following delisting. In prime
congregation areas, numbers of nesting pairs will level off as the
nesting habitat reaches carrying capacity. Many of the bald eagles
displaced from saturated habitats will be able to relocate to other
suitable habitats. However, territorial competition between eagles will
likely maintain a naturally fluctuating population once carrying
capacity has been reached.
Issue: Several commenters were concerned that the Service will not
maintain adequate funding for staff to provide technical assistance or
enforce BGEPA after delisting.
Response: The Service is committed to maintaining adequate staff to
respond to requests for technical assistance. The ultimate mechanisms
for delivering that assistance will be determined prior to making a
decision on the proposed BGEPA permit program (72 FR 31141; June 5,
2007).
Issue: Several commenters expressed concern that the proposed
delisting did not include grandfathering of existing take
authorizations/permits under sections 7 and 10 of the Act.
Response: After delisting of the bald eagle, the Service will honor
existing Act authorizations until the Service completes a final
rulemaking for permits under the BGEPA. We do not intend to refer for
prosecution the incidental take of any bald eagle under the MBTA, as
amended (16 U.S.C. 703-712), or the BGEPA, as amended (16 U.S.C. 668-
668d), if such take is in full compliance with the terms and conditions
of an incidental take statement issued to the action agency or
applicant under the authority of section 7(b)(4) of the Act or the
terms and conditions of a permit issued under the authority of section
10(a)(1)(B) of the Act. The Service has proposed a rulemaking to
establish criteria for issuance of a permit to authorize activities
that would ``take'' bald eagles under the BGEPA. The Service has
addressed the existing Act authorizations in that rulemaking, which if
finalized, might extend comparable authorizations under the BGEPA (72
FR 31141; June 5, 2007).

Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence

Issue: Several commenters were concerned about ongoing impacts of
contaminants. One commenter noted that mercury is still a threat to
bald

[[Page 37354]]

eagles in the Northeast United States. Another commenter noted that
PCBs and DDE were still an ongoing threat to the Great Lakes population
of bald eagles. Another commenter noted that the upper Midwest
population of bald eagles is experiencing a heavy metal contaminant
problem that affects the ratio of immature eagles to adults. Another
commenter stated that too many nests in northern Illinois have zero
productivity due to contaminants.
Response: As we discuss further in Factor E below, we acknowledge
that certain contaminants may pose a threat to individual bald eagles.
We believe many of these instances are localized and that contaminants
will not be a large enough threat to limit the population of bald
eagles in the lower 48 States or any significant portions of its range
in the foreseeable future such that the protection of the Act would be
warranted. This is evidenced by the population increases that have
occurred despite the presence of certain levels of contaminants,
including mercury and PCBs, in the environment.
Issue: One commenter was concerned that climate change may be an
issue, and we should, therefore, keep the bald eagle listed until we
can guarantee that habitats are safe.
Response: Section 4(b)(1)(A) of the Act directs that determinations
as to whether any species is a threatened or endangered species shall
be made ``solely on the basis of the best scientific and commercial
data available.'' We did not receive any data during the public comment
period to indicate that climate change is currently threatening the
future security of the bald eagle or its habitat. Since the bald eagle
is currently successful in a wide range of climate conditions
throughout North America, climate change will not likely be a factor
threatening the species in the foreseeable future.
General Comments
Issue: The Service may take too long to re-list the bald eagle if
it is warranted.
Response: If data from the post-delisting monitoring plan show that
the bald eagle population is decreasing below a trigger threshold
specified in the plan, we will investigate the cause of the decline and
take the necessary measures to address the decline. If the population
decline is severe, then we will promptly evaluate whether re-listing
under the Act is warranted, including the Act's provision for emergency
listing, as appropriate.
Issue: The Service used an out-of-date, non-scientific population
productivity value of 0.7 young/pair.
Response: Our information indicates that a productivity value of
0.7 young/pair for a stable population is still the best available data
(see Sprunt et al. 1973, p. 104; Buehler 2000, p. 20).
Issue: The delisting is too reliant on current eagle numbers.
Research on survivorship, sex ratios, and population recruitment are
all important parameters of recovery, not just productivity. Delisting
criteria should be based on numbers of active nests, not breeding
pairs.
Response: The recovery criteria and goals were established by
recovery teams composed of experts in each geographic region. The
purpose of the criteria was to allow the Service to monitor the status
of the recovery efforts. By setting a goal to monitor population
numbers and productivity, the Service, in conjunction with the recovery
teams, could determine whether the threats that led to the bald eagle's
endangerment had been removed. Monitoring the additional parameters
would have been more costly and would not provide any more data that
would enable the Service to monitor recovery. Given the increase in the
population parameters, the threats have been shown to have decreased to
the point where the bald eagle no longer meets the definition of
threatened or endangered under the Act.
Issue: The population data presented are estimates and not
supported by field work. Data provided by the commenter indicate that
the percentage of immature eagles to adults is dropping, which may
influence reproduction or survival in the bald eagle population.
Response: The data discussed by the commenter are midwinter counts
collected on one day in a 2-hour period from northern Minnesota to
Reelfoot, Tennessee. These data, on their face, did show a fluctuation
in the number of immature bald eagles throughout the time period from
1961 to 2006, with some years having a higher number than others.
However, these data also indicated a trend of increasing adults from
470 in 1961 to 1,299 in 2006. Throughout this time period, the number
of adults also fluctuated. Because surveys of wintering bald eagles,
such as the midwinter counts described above, are weather dependent
(mild winters cause fewer birds to move south) and can include birds
migrating down from Canada, the Service has relied on nesting data as
the stronger indicator of bald eagle population trends in the lower 48
States. We plan to continue monitoring population trends with
implementation of our post-delisting monitoring plan. However, we
support the public involvement related to midwinter counts, and such
data have highlighted the importance of wintering habitats used by
these eagles.

Distinct Vertebrate Population Segment

Sonoran Desert Distinct Population Segment

As discussed above, the Service made a negative 90-day finding on a
petition to list the Sonoran Desert bald eagle population as an
endangered DPS (71 FR 51549; August 30, 2006). In this final
determination on the proposed delisting of the entire bald eagle
population in the lower 48 states, we also consider, as a final
determination, whether the Sonoran Desert population of the bald eagle
constitutes a DPS, and should remain listed as either an endangered or
threatened species. The main bald eagle population center of the
Sonoran Desert currently consists of 42 breeding pairs (AZ Game and
Fish Dept. 2006, p. 6) that are found in the southern half of Arizona,
west of the New Mexico state boundary. One breeding pair in Arizona is
found outside the Sonoran Desert.

Discreteness

The DPS policy states that a population segment of a vertebrate

[[Page 37355]]

species may be considered discrete if it satisfies either one of the
following two conditions: It must be markedly separated from other
populations of the same taxon as a consequence of physical,
physiological, ecological, or behavioral factors; or it must be
delimited by international boundaries within which significant
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act. The second
criterion, international boundaries, is easily addressed because the
Sonoran Desert population of bald eagles is not delimited by
international boundaries that could be the basis of a review of
management of habitat, conservation status or regulatory mechanisms.
Therefore, the Sonoran Desert population of bald eagles is not discrete
based on this criterion. As discussed below, under the first criterion,
we find that the Sonoran Desert population is markedly separated from
other populations as a consequence of behavioral factors. Therefore, we
do not address separation by physical, physiological, or ecological
factors.
In looking at whether Sonoran Desert bald eagle are markedly
separated from other populations it is helpful to evaluate whether
there is a level of interchange between this population and adjacent
populations. Biologists in Arizona made a concerted effort to band all
nestlings in Arizona since 1987. Of those birds that were sighted with
bands between 1987 and 2005, 41.8 percent hatched in Arizona, 18.8
percent likely hatched in Arizona before 1987 (due to a different band
type), less than one percent were from another State, and 38.8 percent
were from unknown origin (unbanded) (Driscoll et al. 2006, p. 26). One
adult breeding in Arizona is known to have originated from another
State (banded as a nestling in 1988 in southeast Texas). Only one
nestling with a band was identified as subsequently nesting outside the
recovery region (Temecula, California) (Driscoll et al. 2006, p. 27).
Roughly 20 percent of the population does not receive a band for a
variety of reasons (e.g., logistics of reaching the nestlings), and
therefore 38 percent of the population without bands would not be
unusual.
In addition, because of the clinal variation in these birds, bald
eagle populations from around the same latitude would likely be the
supplier of birds that would immigrate into the population. Currently,
we do not have any populations surrounding the Sonoran Desert that are
large enough that juveniles would likely start to disperse into the
Sonoran Desert. Within the last 30 years, these adjacent populations
have not increased in size to the same degree as we have seen with the
populations in other parts of the bald eagle's range. Given that we do
not have large bald eagle population centers surrounding the Sonoran
Desert, and given the limited habitat found between currently known
populations, it is likely that interchange between the Sonoran Desert
and other populations will be minimal in the foreseeable future.
These data indicate that immigration to and emigration from the
Sonoran Desert population is very limited. Reproductive isolation of
the bald eagles nesting in the Sonoran Desert region of Arizona,
although probably not absolute, appears to be substantial. Our DPS
Policy does not require that populations experience total reproductive
isolation in order to meet the discreteness criterion; rather, they
need only to be ``markedly separated.'' We believe the documented low
levels of immigration and emigration indicate that this population is
currently markedly separated from other bald eagles in the United
States.
On the basis of the immigration by the southeast Texas eagle, in
1995, the Service determined as part of the Service's final rule
reclassifying the bald eagle from endangered to threatened (60 FR
36000; July 12, 1995) that eagles in the Southwestern Recovery Region
were not reproductively isolated. The banded bald eagle from Texas,
although located within the Southwestern Recovery Region, occupies an
area outside the Sonoran Desert. Furthermore, no additional banded bald
eagles from outside the Sonoran Desert have been discovered immigrating
into the Sonoran Desert since 1995. In addition, the analysis during
the 1995 rule was conducted prior to implementation of the DPS policy
in 1996. Therefore, now reviewing the same question in the context of
the DPS policy, combined with more data on immigration and emigration,
leads us to a conclusion that this population is discrete.

Significance

If we determine that a population segment is discrete under one or
more of the discreteness conditions, then we evaluate its significance
based on ``the available scientific evidence of the discrete population
segment's importance to the taxon to which it belongs'' (61 FR 4725).
We make this evaluation in light of congressional guidance that the
Service's authority to list DPSs be used ``sparingly'' while
encouraging the conservation of genetic diversity (61 FR 4722; February
7, 1996). This consideration may include, but is not limited to the
following elements: (1) Evidence of the persistence of the population
segment in an ecological setting that is unusual or unique for the
taxon; (2) evidence that loss of the population segment would result in
a significant gap in the range of the taxon; (3) evidence that the
population segment represents the only surviving natural occurrence of
a taxon that may be more abundant elsewhere as an introduced population
outside of its historic range; and (4) evidence that the discrete
population segment differs markedly from other populations of the
species in its genetic characteristics.
(1) Evidence of the persistence of the population segment in an
ecological setting that is unusual or unique for the taxon.
As stated in the DPS policy, the Service believes that occurrence
in an unusual ecological setting is potentially an indication that a
population segment represents a significant resource warranting
conservation under the Act (61 FR 4724). In considering whether the
population occupies an ecological setting that is unusual or unique for
the taxon, we evaluate whether the habitat shares many features common
to the habitats of other populations. The Sonoran Desert bald eagle
population inhabits a desert ecosystem characterized by hot and dry
summers that, on its face, seems to represent an ecological setting
that is highly unusual or unique for the species. However, bald eagles
in the Sonoran Desert population essentially use the same ecological
niche as those in other parts of the lower 48 States population. Bald
eagles in the Sonoran Desert feed primarily on fish, consistent with
bald eagles in other parts of the range. Habitat structure and
proximity to a sufficient food source are usually the primary factors
that determine suitability of an area for nesting (Grier and Guinn
2003, p. 44). Nationwide, bald eagles are known to nest primarily along
seacoasts and lakeshores, as well as along banks of rivers and streams
(Stalmaster 1987, p. 120). Similar to the remainder of the population,
bald eagle breeding areas (eagle nesting sites and the area where
eagles forage) in the Sonoran Desert are located in close proximity to
a variety of aquatic sites, including reservoirs, regulated river
systems, and free-flowing rivers and creeks.
We considered whether cliff nesting is an adaptation to the
conditions in the Sonoran Desert that indicates the Southwest is a
unusual or unique ecological setting for bald eagles. While Stalmaster
(1987) noted that cliff nesting

[[Page 37356]]

is common in Arizona, he also noted that exceptions to tree nests in
other areas do occur. Gerrard and Bortolotti (1988, p. 41) note that
bald eagles in other areas may nest on cliffs if suitable trees are not
available. For instance, bald eagles are known to nest on cliffs on the
Channel Islands off California (NOAA 2006). Bald eagles in Alaska also
are known to nest on cliffs, sea stacks, hillsides, and rock
promontories where there are no suitable nest trees (Sherrod et al.
1976, p. 153). It is likely that up to 10 percent of the bald eagles in
Alaska nest on the ground (Schempf 2007). Ground nesting has been
documented in northwestern Minnesota and Florida but is the exception
rather than the rule (Hines, P. and H. Lipke 1991; Shea, R.E. and
Robertson W.B. Jr. 1979). Eagles also nest in a variety of odd
situations, such as utility poles, abandoned heavy equipment,
mangroves, and root wads washed up on sandbars. Cliff nesting in the
Sonoran Desert bald eagles does not seem to be an indication of a
behavioral adaptation unique to the Sonoran Desert. Bald eagles will
use whatever high nest sites are available near riparian areas they
inhabit: in the Sonoran Desert these sites often happen to be cliffs.
In fact, although bald eagles utilize cliffs, ledges, and pinnacles for
nesting in the Sonoran Desert, they have also nested in cottonwood,
willow, sycamore, pinyon pine, and ponderosa pine trees. Many Sonoran
Desert eagle pairs have built and used both tree and cliff nests within
their territories. This behavior demonstrates the flexibility in nest
site selection that bald eagles have throughout the eagles' entire
geographic range.
Bald eagles in the Sonoran Desert are smaller in size and breed
earlier in the season than most other bald eagles, which could indicate
behavioral adaptations to a unique setting. However, examination by
latitude reveals differences between birds in the northern regions and
birds in the southern regions. For instance, Stalmaster (1987, pp. 16-
17) notes northern eagles are much larger and heavier than their
southern counterparts. This is consistent with Bergmann's Rule, which
holds that animal size increases with increasing latitude due to
changes in environmental temperature. Consistent with this rule, Hunt
et al. (1992) reports that bald eagles in Arizona are smaller than
those in Alaska, California, and the Greater Yellowstone Region.
Gerrard and Bortolotti (1988, p. 14) note that bald eagles in Florida,
which is farther south than Arizona, are the smallest, with a gradation
of small to large from south to north. Timing of various breeding
events in bald eagles is also tied to latitude of the nesting area,
with eagles at more northern latitudes breeding at later dates
(Stalmaster 1987, p. 63). Stalmaster (1987, p. 63) notes that bald
eagles in Florida initiate breeding activities in October, even earlier
than Sonoran Desert bald eagles. Bald eagles in Florida also lay eggs
earlier (Stalmaster 1987, p. 63; Gerrard and Bortolotti 1988, p. 76).
Accordingly, Florida bald eagles hatch and fledge earlier than those in
the Sonoran Desert.
In summary, Stalmaster's (1987) and Gerrard and Bortolotti's (1988)
studies indicate that bald eagles in other parts of the lower 48 States
are known to nest on cliffs if suitable trees are not available. Hunt
et al. (1992) notes that Florida bald eagles are the smallest bald
eagles, and that eagle size increases as the nest sites are located
farther north. Stalmaster (1987) notes that bald eagles in Florida
initiate breeding activities in October, even earlier than Sonoran
Desert bald eagles. The best available scientific information indicates
that the Sonoran Desert bald eagles are not unique in these behavioral
aspects. Instead, bald eagle behavior and morphology gradually changes
at different latitudes from north to south within the lower 48 States.
In fact, even though bald eagles do persist in the Southwest desert
setting, they remain consistently associated with riparian ecosystems.
Bald eagles use whatever high nest sites are available near riparian
areas they inhabit in the Sonoran Desert; these sites often happen to
be cliffs. Therefore, because these riparian areas are common to eagle
habitats throughout the species' range, the best available data
indicate that the Sonoran Desert population of eagles does not occupy
an ecological setting that is unusual or unique for the taxon or that
has resulted in any adaptations that are unusual or unique for the
taxon.
Many biological opinions prepared by the Service in connection with
section 7 consultations in the Sonoran Desert and other Service
documents issued over the last 30 years stated that Arizona bald eagles
live in a unique ecological setting and demonstrate unique behavioral
characteristics, including the use of cliffs instead of trees as nest
sites, breeding at earlier times of the year, and development of
smaller body sizes. Many of these biological opinions and other
documents were issued prior to the Stallmaster (1987) and Gerrard and
Bortolotti (1988) studies. Furthermore, these Service documents were
prepared prior to the issuance of the DPS policy in 1996, or abstracted
from such earlier biological opinions without re-analyzing their
relevance. The term ``unique ecological setting'' was not used in these
documents in the context of its meaning within the DPS policy, which
requires that the unique ecological setting be important to the taxon
as a whole. While the climate conditions differ in the Southwest
compared to other parts of the lower 48 States where bald eagles are
found, this attribute alone does not complete the requirements of the
DPS policy. A unique ecological setting must also provide some element
that makes the members of the population important to the taxon as a
whole, such as an evolutionary advantage (61 FR 4724-4725). The factual
statements in the biological opinions and other documents concerning
the location of the population within the desert and the description of
their behaviors did not include consideration of the population's
importance to the taxon as a whole because these documents were either
issued prior to the promulgation of the DPS Policy or were issued for
other purposes than evaluation of the population under the DPS Policy.
The biological opinions and other documents, prior to 1995, also
stated that the Arizona bald eagles had been considered a distinct
population for the purposes of section 7 consultation and recovery
efforts under the Act. The practice of dividing species distributed
across the large areas within the United States into separate recovery
regions was employed for management convenience (71 FR 51555). For the
bald eagle, we created five different recovery plans for these regions.
The Service's current practice, however, is to create one plan for the
listed entity because the previous practice led to confusion regarding
the status of the recovery plan entity under section 4 of the Act. In
addition, ``recovery units'' have been, and continue to be, identified
as part of the recovery planning process for listed species as a
management convenience. In the past, for the purposes of section 7
consultation, the Service may have only evaluated whether the impact of
a proposed action was jeopardizing the management unit, either the
recovery plan entity or the recovery unit. However, this process was
discontinued based on the consultation handbook that was finalized in
March 1998 (USFWS and NMFS 1998, p. 4-36). As previously discussed,
separating the listed entity into smaller management pieces may be
useful in addressing the conservation needs of the species. However, it
is important to note that the establishment of separate recovery plans
or ``recovery units'' within a plan does not create a

[[Page 37357]]

new listed entity under section 4 of the Act. The Service has since
acknowledged that for both recovery planning and consultation, the
listed entity is the appropriate level of analysis.
The Sonoran Desert can experience periods in the summer that are
hot, with low humidity, but it is not a unique ecological setting for
bald eagles for the purpose of the significance prong of the DPS
policy. The best available scientific data suggest that the ecological
setting is essentially the same as used by bald eagles elsewhere--
riparian habitat. Although the Sonoran Desert obviously differs in some
ways from other habitats that the bald eagle inhabits, every area
differs somewhat from other occupied areas and the mere existence of
difference does not settle this question. To the degree that the
Sonoran Desert differs from other ecological settings used by the bald
eagle, we conclude that it does not differ in a way that is dispositive
under the DPS policy, because the adaptations exhibited by bald eagles
in the Sonoran Desert are not unique to this setting. Rather, the
variability in bald eagle nest site selection, breeding phenology, and
size are noted elsewhere in the range where the species confronts
similar limitations, such as the absence of nesting trees or high
temperatures.
The question under the DPS policy is whether persistence of a
species in an unusual or unique ecological setting supports a
conclusion that the discrete population segment is important to the
taxon to which it belongs (See National Association of Home Builders v.
Norton, 340 F.3d 835, 849 (9th Cir. 2003) emphasizing that under the
DPS policy significance must be to the taxon as a whole). The mere fact
that a species persists in an ecological setting that differs to some
degree from other ecological settings in which it is found does not
mandate a finding that a population is significant. Here, we find that
the species' persistence in the Sonoran Desert does not support such a
conclusion because there is no evidence that these particular eagles
have adapted in response to these conditions in any way that benefits
the taxon as a whole because similar adaptations are found in other
settings. Without evidence of such an adaptation, there is likewise no
evidence that the bald eagle's persistence in the Sonoran Desert is
important to the bald eagle as a whole.
Therefore, we conclude that the discrete population of bald eagles
in the Sonoran Desert is not ``significant'' within the meaning of the
DPS policy as a result of persistence in a unique or unusual ecological
setting.
(2) Evidence that loss of the population segment would result in a
significant gap in the range of the taxon.
As ``[t]he plain language of the second significance factor does
not limit how a gap could be important,'' National Ass'n of Home
Builders v. Norton, 340 F.3d 835, 846 (9th Cir. 2003), we considered a
variety of ways in which the loss of the Sonoran Desert population
might result in a significant gap in the range of the bald eagle in the
lower 48 States, much less the broader taxon. There has been much
speculation about the loss of the Sonoran Desert population given that
repopulation of this area would have to occur from northern Mexico or
adjacent States, and available evidence indicates that little
immigration has occurred in this population. We agree that the low
number of eagles in neighboring States would likely require a large
amount of time to repopulate the Sonoran Desert region, if they ever
did. The small number of bald eagles and large distances between
neighboring populations currently limit immigration and emigration
between them, and bald eagles in the neighboring populations would have
to increase their population size and expand their distribution to
occupy the gaps.
Given repopulation through immigration is unlikely in the
foreseeable future, we have to evaluate whether this would represent a
significant gap to the taxon. The current range of the Sonoran Desert
bald eagle could be significant if the population in the Sonoran Desert
is numerous and constitutes a significant percentage of the total
number of bald eagles, the loss of which would be a significant gap in
the population. Bald eagles in the Sonoran Desert are neither numerous
nor constitute a significant percentage of the total bald eagles within
the lower 48 States. Currently, 43 pairs are found in Arizona, which
represents less than 1% of the current estimated number of breeding
pairs of bald eagles in the lower 48 states. In addition, this area did
not support a large proportion of the bald eagle population
historically. A small number, estimated at 15-20 breeding pairs,
historically bred in this area (Tilt 1976, p. 15). Given the historical
and current population number of bald eagles in the lower 48 States,
the Sonoran Desert population of bald eagles represents a relatively
small number of breeding pairs in comparison to other areas within the
lower 48 States. Also, significant numbers of bald eagles that breed
elsewhere do not winter in the Sonoran Desert.
In addition, as discussed in the first and fourth significance
factors, we have no evidence that loss of the Sonoran Desert population
would represent a significant gap due to a loss of biologically
distinctive traits or adaptations or genetic variability of the taxon.
In addition, as discussed in the discreteness section, loss of the
Sonoran Desert population would not create a significant gap by
impeding gene flow within the taxon, as the Sonoran Desert population
does not connect otherwise unconnected populations. Finally, loss of
the Sonoran Desert population would not result in a significant gap in
the range of the taxon due to the sheer reduction of existing or
potential geographical range. The actual amount of suitable bald eagle
habitat in the Sonoran Desert, limited to a few riparian corridors, is
a tiny fraction of the total suitable habitat available for bald eagles
in the lower 48 States, much less their entire range. The limited size
of the current and historical bald eagle population in the Sonoran
Desert directly reflects that fact.
(3) Evidence that the population segment represents the only
surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside of its historic range.
The Sonoran Desert population does not represent the only surviving
natural occurrence of the bald eagles in the lower 48 States.
(4) Evidence that the discrete population segment differs markedly
from other populations of the species in its genetic characteristics.
Hunt et al. (1992, pp. E-96 to E-110) contains the genetic work
completed to date on the Arizona bald eagle population. Vyse (1992, p.
E-100, E-101) notes the data are inconclusive, as evidenced by such
statements as: ``These findings must be assumed to be preliminary (and
treated with due caution), because of a lack of information concerning
sampling procedures. The results we have obtained could easily be
explained by sampling procedures''; and ``At present these data (HinfI/
M-13) are too incomplete to be considered further.'' In addition,
Zegers et al. 1992, p. E-106 to E-109): ``Question 4 * * * is difficult
to answer with precision because of the different sample sizes between
1985 and 1990 * * *. [T]his difference is possibly an artifact of the
many fewer samples in 1985''; ``six loci may not be enough to give a
reliable estimate of the true genetic distance''; and ``We feel caution
should be exercised when interpreting these results due to the low
numbers of individuals sampled from most states but especially because
of the few loci examined.''

[[Page 37358]]

Although Hunt et al. (1992) suggested that the desert Arizona
population may be reproductively isolated, neither enzyme
electrophoresis nor DNA fingerprinting resolved any specific genetic
markers with which Arizona eagles could be differentiated from other
populations. The available genetic studies on bald eagles are dated,
the sample size was small, and researchers conducting the studies found
the results to be inconclusive. As discussed above, the Sonoran Desert
population does not display any biologically distinctive traits that
could signal any unique genetic characteristics. Therefore, given the
assumptions and cautions in using the data, we have determined that the
best available data do not support a conclusion that the Sonoran Desert
bald eagle population has genetic characteristics that are markedly
different from other bald eagles.

Conclusion

We have reviewed the best scientific and commercial data available
and have evaluated the data in accordance with 50 CFR 424.14(b). On the
basis of our review, we find that although the Sonoran Desert bald
eagle population is discrete, it is not significant in relation to the
remainder of the taxon. Sonoran Desert bald eagles lack any
biologically or ecologically distinguishing factors. Although they do
persist in an arid region, Sonoran Desert bald eagles do not have any
adaptations that are not found in bald eagles elsewhere. The
adaptability of the species allows its distribution to be widespread
throughout the North American continent. Therefore, we conclude that
the Sonoran Desert population of the bald eagle in the lower 48 States
is not a listable entity under section 3(16) of the Act.

Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing species, reclassifying
species, or removing species from listed status. ``Species'' is defined
by the Act as including any species or subspecies of fish or wildlife
or plants, and any distinct vertebrate population segment of fish or
wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the
``species'' is determined we then evaluate whether that species may be
endangered or threatened because of one or more of the five factors
described in section 4(a)(1) of the Act. We must consider these same
five factors in delisting a species. We may delist a species according
to 50 CFR 424.11(d) if the best available scientific and commercial
data indicate that the species is neither endangered nor threatened for
the following reasons: (1) The species is extinct; (2) the species has
recovered and is no longer endangered or threatened (as is the case
with the bald eagle); and/or (3) the original scientific data used at
the time the species was classified were in error.
A recovered species is one that no longer meets the Act's
definition of threatened or endangered. Determining whether a species
is recovered requires consideration of the same five categories of
threats specified in section 4(a)(1) of the Act. For species that are
already listed as threatened or endangered, this analysis of threats is
an evaluation of both the threats currently facing the species and the
threats that are reasonably likely to affect the species in the
foreseeable future following the delisting or downlisting and the
removal or reduction of the Act's protections.
A species is ``endangered'' for purposes of the Act if it is in
danger of extinction throughout all or a ``significant portion of its
range'' and is ``threatened'' if it is likely to become endangered
within the foreseeable future throughout all or a ``significant portion
of its range.'' The word ``range'' in the significant portion of its
range (SPR) phrase refers to the range in which the species currently
exists. For the purposes of this analysis, we will evaluate whether the
currently listed species, the bald eagle in the lower 48 States, should
be considered threatened or endangered. Then we will consider whether
there are any portions of bald eagle's range in danger of extinction or
likely to become endangered within the foreseeable future.
For the purposes of this final rule, we consider ``foreseeable
future'' for the bald eagle to be 30 years. Bald eagles fully mature at
4 to 5 years of age (Buehler 2000, p. 19). Gerrard and Bortolotti
(1988) observed that successful breeding may not occur for 2 years or
more after reaching maturity. Thus, a life cycle from birth to breeding
is about 6 years (Gerrard and Bortolotti 1988, p. 57). We used 5 bald
eagle generations (30 years) to represent a reasonable biological
timeframe to determine if threats could depress the population size and
therefore would be significant. We have roughly 30 years of detailed
information on how bald eagle populations have responded to the threats
identified when the species was listed. Based on this body of
information and the combination of bald eagle biology and the threats
of greatest consequence (contaminant exposure, shooting, and habitat
modification), we conclude that 30 years is a reasonable timeframe over
which we can extrapolate the likely extent of the threats and their
impact on the species.
The following analysis examines all five factors currently
affecting, or that are likely to affect, the bald eagle in the lower 48
States within the foreseeable future.
A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range. This section will first describe
the habitat needs of the bald eagle. It will then discuss the potential
threats to that habitat, and the degree to which those threats are
ameliorated by various factors. Our analysis concludes that: (1) The
habitat threats to such a wide-ranging species, while not readily
quantifiable, are much less significant than once feared given the
strong recovery of the eagle over the last 30 years; (2) the threats
that do exist vary considerably across the landscape, based in part on
the ownership of the land in question and the fact that many lands have
significant protection independent of the Act; (3) nesting habitat on
protected lands is likely sufficient to maintain the recovered
population in the foreseeable future; (4) several regulatory mechanisms
will limit the degree to which habitat loss will occur on other lands;
and (5) recent anecdotal data suggest that even when habitat loss
occurs, the impact on bald eagles may be less than previously
anticipated.
Throughout their life cycle, bald eagles are associated with a
variety of aquatic habitats. Beyond this generalized need for aquatic
habitat, bald eagles are not particularly specialized in their habitat
needs, thriving near a variety of different environments, including
reservoirs, lakes, rivers, estuaries, and coastal areas throughout
North America. Within the aquatic habitats, bald eagles feed primarily
on fish, but may also consume waterfowl, gulls, cormorants, and a
variety of carrion.
Bald eagles usually nest in trees near water, but may use cliffs in
the southwestern United States and Alaska. Ground nests have also been
reported from Alaska. Nests are usually built in large trees along
shorelines, but may be up to one-half mile or more from the shoreline.
Adults use the same breeding territory, and often the same nest, year
after year. They may also use one or more alternate nests within their
breeding territory.
The habitat needs of bald eagles vary somewhat outside of the
breeding cycle, although bald eagles are still strongly

[[Page 37359]]

dependent on aquatic habitats as their primary food source. The timing
and distance of dispersal from the breeding territory varies. Some bald
eagles stay in the general vicinity of their breeding territory while
some migrate up to hundreds of miles to their wintering grounds and
remain there for several months. Young eagles may wander randomly for
several years before returning to nest in their natal areas. Eagles
seek wintering (non-nesting) areas offering an abundant and readily
available food supply with suitable night roosts. Night roosts
typically offer isolation and thermal protection from winds. Bald
eagles generally concentrate in large numbers in suitable habitat areas
in the winter. Important breeding and wintering areas have generally
been located in areas at distances from human activity. As discussed
below, however, recent data have begun to challenge long-held
assumptions that bald eagles require significant isolation from all
human activity.
The eagle's decline was largely due to chemicals now known to
impair reproductive success (see discussion of this threat under Factor
E). Through the recovery planning process, however, various threats to
habitat were noted, such as loss of nesting, roosting, and perching
habitat through recreational shoreline development, forestry, and urban
and suburban expansion. In addition, habitat can be degraded through
human disturbance, especially during breeding season. However, as
discussed in detail below, in the context of the eagle's dramatic
recovery (and continuing population increases), the threat posed by
future destruction or modification of habitat is minor compared to what
would be required for the bald eagle to be likely to become in danger
of extinction throughout all or a significant portion of its range
within the foreseeable future.
Currently, habitat availability is not preventing the growth of the
bald eagle population in the lower 48 States. Areas that were
unoccupied have been repopulated, and the eagle population continues to
increase, indicating that carrying capacity has not been reached in
many parts of their range. Based on the most recent data, the
population in a few States with relatively limited habitat may have
started to stabilize; Colorado has shown a slight decline in the
numbers of pairs between survey years of 2001 and 2005 (Ver Steeg 2006,
p. 2). Other States continue to experience rapid population growth: the
number of pairs in Illinois and Iowa doubled between 1999 and 2006
(Conlin 2006, p. 1; Vonk 2006, p. 1). Most States are continuing to
show a slight increase in the number of breeding pairs. The population
in the lower 48 States as a whole will likely continue to increase in
the foreseeable future but at a gradually declining rate that is much
slower than has been documented during the past 30 years of the
recovery period. Once the carrying capacity has been reached in
different parts of the range, we expect the population to naturally
stabilize and then fluctuate.
When the recovery planning started, the bald eagle population was
at a precarious stage and any threat to the remaining birds was
identified, given the uncertainty of its continued survival, much less
recovery. At that time, any significant habitat loss (particularly if
it affected the remaining pairs) was of grave concern. However, with
the eagle population increasing by well over an order of magnitude
since that time, the immediate concern posed by habitat loss has
dissipated. The only remaining concern related to habitat is whether,
over the long term, development or other factors might cause habitat
loss sufficient to limit the eagle population to a point that the
viability of the population is threatened.
In the future, available habitat will almost certainly limit the
population of bald eagles in the lower 48 States. Furthermore, we
acknowledge that habitat loss will likely eventually result in slow
declines of bald eagle populations in some areas. Through comments and
information in our files, we are aware that heavy development pressures
and important eagle habitat overlap in parts of Florida and the
Chesapeake Bay region. According to the U.S. Census Bureau, Florida is
the third fastest growing State in the nation, and the State's human
population is projected to increase by 79 percent by 2030 (compared to
2000). The Chesapeake Bay region States (Maryland, Delaware, and
Virginia) all have varying degrees of projected increase that average
around 32 percent over the same time period. Moreover, the population
of bald eagles in Florida has started to stabilize, not showing an
increase or decrease between 2003 and 2005. Thus, it is likely that the
number of breeding pairs in Florida will begin to decline within the
foreseeable future, and possible that the same result could occur in
the Chesapeake Bay region.
The relevant question under section 4 of the Act, however, is
whether such a decline will occur in the foreseeable future to a degree
that the bald eagle is likely to become in danger of extinction again
throughout all or a significant portion of its range. In analyzing this
question, we considered the fact that the habitat threats that do exist
vary considerably across the landscape. This is in part based on the
ownership of the land in question--some lands have significant
protection independent of the Act. Because the threats do vary across
the range, we discuss in greater detail at the end of this section
those portions of the range that have come to our attention based on
comments or information in our files.
One of the biological factors that will ensure the bald eagle is
not now endangered or likely to become so in the foreseeable future is
that bald eagles are not particularly specialized in the type of
aquatic habitat they use, but instead thrive near a variety of
different environments including reservoirs, lakes, rivers, estuaries,
and the marine environment. Currently, bald eagles occupy one or more
of these environments in each of the lower 48 States, and have large
breeding populations in those geographic areas that historically
supported significant breeding populations. This tremendous
distribution of bald eagles throughout the lower 48 States, combined
with the species' ability to exploit such a wide range of geographic
habitat settings, provides an important buffer against any potential
threats to any of the significant portions of the range and to the
species as a whole.
High quality habitat has been characterized as those areas in which
human development and disturbance are absent (McGarigal et al. 1991).
However, recent data suggest that eagles across many parts of their
range are demonstrating a growing tolerance of human activities in
proximity to nesting and foraging habitats. Eagles in these situations
continue to successfully reproduce in settings previously considered
unsuitable. For example, where our Southeastern nesting management
guidelines have been followed in Florida, some bald eagle pairs have
shown a remarkable adaptation to human presence by nesting in
residential subdivisions and commercial and industrial parks, and on
cell phone towers and electric distribution poles. A common thread
throughout these urban and suburban landscapes is the availability of
ample food sources such as natural lakes, rivers, and ponds; artificial
stormwater retention ponds; and public landfills (Millsap et al. 2002,
p. 10). A study of bald eagle nesting patterns in western Florida
detected no differences in nest-site occupancy, nest success, or number
of young fledged between bald eagles occupying suburban or rural nest
sites, except bald eagles in suburban sites nested earlier (Millsap et
al. 2002, pp. 14, 25). In western Washington,

[[Page 37360]]

breeding bald eagles responded less to pedestrian activity than had
been documented in other studies in the United States, possibly
reflecting a higher degree of habituation to human activities by eagles
in this area (Watson 2004, p. 301). The Service has documented several
cases in which bald eagles around the Chesapeake Bay have continued to
nest and successfully produce young within distances that were
previously considered too close to human activity (Koppie 2007a). In
addition, in both Virginia and Maryland, compression of nesting
territories has been observed, suggesting that the density of nesting
pairs can be higher than once documented (Koppie 2007a). This evidence
suggests that as eagles begin to reach the carrying capacity in local
areas and face development or other encroachments, some eagles will
successfully adapt to these circumstances. To the extent that this is
true, degradation of habitat due to human disturbance is not as large a
threat as once believed.
To understand the potential for nesting habitat loss due to
development in the foreseeable future, we used a GIS (Geographic
Information Systems) analysis to estimate the number of known bald
eagle nests throughout the lower 48 States that occur on ``protected
land.'' The ``protected'' land category includes Federal, State,
Tribal, and other areas designated as privately protected, such as
lands owned by The Nature Conservancy or similar non-governmental
entities. To identify such lands, we used the Conservation Biology
Institute Protected Areas Database, the National Atlas Federal Lands
data layer, and the State GAP Analysis data (Otto 2007). Included in
another data layer are the bald eagle nests in the lower 48 States that
are identified as a result of a compilation of data we received from
individual States.
The resolution and quality of this information was not at a highly
detailed scale, so there may be nests assigned to the wrong type of
land use. For instance, the data from the National Atlas Federal lands
data layer only includes Federal lands of 640 acres or more. However,
given that our analysis was done at a broad scale, the resolution and
quality of this data can generally give us an indication of the
percentage of nests over the entire 48 States on protected land. Our
intent in this analysis was only to gain perspective on those lands on
which eagle nesting habitat is not likely to be lost in the foreseeable
future due to the particular land category status. These areas may not
all be managed specifically for bald eagles; however, as discussed
below, a variety of legal and practical considerations will act to
minimize negative impacts to bald eagle habitat once the protections of
the Act are removed.
Through the GIS analyses, we have identified more than 6,000 bald
eagle nests in the lower 48 States on lands that provide protection for
bald eagles. Of these, more than 3,400 occur on Federal lands managed
by the Departments of Agriculture or the Interior, and an additional
275 occur on lands managed by the Department of Defense, including
approximately 170 on lands managed by the U.S. Army Corps of Engineers.
The remaining roughly 2,700 nests included within the 6,000 bald eagle
nest figure are found on lands in either State or private ownership.
Based on many years of conducting consultations under section 7 of the
Act, reviewing habitat conservation plans under section 10 of the Act,
reviewing National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et
seq.) documentation for Federal actions, and other interactions with
Federal and State agencies, we have found that management activities on
public lands usually provide for maintaining some vegetation buffers of
varying widths along riparian corridors and coastal areas. These were
sometimes required by the Service as reasonable and prudent measures to
address impacts to eagles, but often these buffers were incorporated
into project planning because they were required to satisfy another of
the action agencies' governing environmental or management laws, or
because maintaining such buffers represents a good management practice
even in the absence of a legal requirement. The practice of maintaining
vegetative buffers is particularly relevant to (and generally
supportive of) bald eagle conservation, because of the need of the
species to have nesting and roosting sites (generally in trees) in
close proximity to water.
As mentioned in the Effects of This Rule section, we intend to
honor the existing incidental take statements associated with existing
section 7 consultations, as long as the action agency and other covered
entities comply with all their terms and conditions. We therefore
anticipate that habitat that would be either protected or conserved as
a result of these Act authorizations remaining in place. Looking to the
foreseeable future, each land management agency has its own authorizing
statutes and implementing regulations that may either directly or
indirectly conserve habitat for bald eagles, such as by means of
buffers (as discussed above). The following paragraphs discuss some of
the relevant authorities for the Federal agencies managing land with
substantial numbers of eagle nests.
The U.S. Forest Service reports that bald eagles occur on 142
National Forests in the lower 48 States (Bosch 2006). More than 2,000
known bald eagle nests are found within these areas. The Forest Service
manages most of its lands for multiple uses, including management for
timber production, recreation, and the needs of wildlife, fish, and
sensitive plants. Under the National Forest Management Act of 1976 (16
U.S.C. 1600 et seq.), it is the policy of Congress that all forested
lands in the National Forest System shall be maintained in appropriate
forest cover with species of trees, degree of stocking, rate of growth,
and conditions of stand designed to secure the maximum benefits of
multiple use sustained yield management in accordance with land
management plans. Particular habitat protection for bald eagle is
afforded through the protection of streams, stream-banks, shorelines,
lakes, wetlands, and other bodies of water from detrimental in changes
in water temperature, blockages of water courses and deposits of
sediment (16 U.S.C 1604(g)(3)(E)(iii)). In developing, maintaining, and
revising management plans for units of the National Forest System, the
Secretary of Agriculture is required to provide for multiple-use and
sustained-yield of the products and services obtained from the System
in accordance with the Multiple-Use, Sustained-Yield Act of 1960,
including coordination of outdoor recreation, range, timber, watershed,
wildlife and fish, and wilderness (16 U.S.C. 1604(e)(1)).
The number of nests on Forest Service lands has grown substantially
over the last 30+ years, and there is no indication that we have
achieved the carrying capacity of the National Forest System. Even at
some point in the future when the system's carrying capacity is
reached, the multiple-use, sustained yield policies of the U.S. Forest
Service are generally consistent with the conservation needs of the
bald eagle because they will maintain a large-scale, shifting mosaic
that should provide generally stable habitat conditions and a stable
number of breeding pairs throughout the National Forest System.
The Service's National Wildlife Refuge (NWR) System contains more
than 160 national wildlife refuges that provide important nesting
grounds for bald eagles (U.S. FWS 2006c, p. 1). These refuges host more
than 600 bald eagle nests. The Service established four

[[Page 37361]]

refuges specifically to provide management for the bald eagle: the Bear
Valley NWR in Oregon was established in 1978 to protect a major night
roost site for wintering bald eagles; the Karl E. Mundt NWR in South
Dakota/Nebraska protects one of the important bald eagle winter
roosting areas and provides important habitat for 100-300 individual
bald eagles; the Mason Neck NWR in Virginia protects essential nesting,
feeding, and roosting habitat; and the James River NWR in Virginia
protects one of the largest summer roosting areas for juvenile bald
eagles east of the Mississippi River.
The mission of the National Wildlife Refuge System is to administer
a national network of lands and waters for the conservation,
management, and where appropriate, restoration of the fish, wildlife,
and plant resources and their habitats within the United States for the
benefit of present and future generations of Americans (16 U.S.C.
668dd). Refuges may be opened for public access and limited uses, with
priority afforded to wildlife-dependent recreation. Evaluation of
proposed uses typically requires an examination of the appropriateness
and compatibility with the System mission and the purposes for which a
particular refuge has been established, among other considerations.
The System regulations at 50 CFR part 27 contain a number of
prohibitions regarding wildlife that are applicable to bald eagles,
including taking, disturbing, or injuring them on refuge lands without
a permit. In administering the System, the Secretary of the Interior
shall provide for the conservation of fish, wildlife, and plants and
their habitats within the System and ensure that the biological
integrity, diversity, and environmental health of the System are
maintained for the benefit of present and future generations of
Americans. The Service applies those requirements through its
Administrative Manual Chapter on Biological Integrity, Diversity, and
Environmental Health (601 FW 3). Key underlying principles of the
policy are that wildlife conservation comes first; each refuge is
managed to ensure its biological integrity, diversity, and
environmental health; and biological integrity, diversity, and
environmental health is considered in a landscape context.
The number of nests on refuges has also grown substantially over
the last 30+ years, and there is no indication that we have achieved
the carrying capacity of the NWR system. When carrying capacity is
reached at some point in the future, the policies and management
practices of the Service, with their emphasis on wildlife conservation
and the requirement that all uses of System lands meet the test of
being compatible with the purposes for which a particular unit of the
System was established, are consistent with the conservation needs of
the bald eagle because they will provide generally stable habitat
conditions and numbers of breeding pairs throughout the system.
Therefore, we expect that units of the National Wildlife Refuge System
will continue to be managed in ways that contribute substantially to
the conservation of bald eagles and meet their habitat needs.
Approximately 130 National Park units have bald eagles located
within their boundaries, according to the National Park Service
Endangered Species database (U.S. NPS 2006), with more than 300 bald
eagle nests on the lands managed by the National Park Service (NPS).
These lands include National Parks, National Seashores, National
Monuments, and National Wild and Scenic Rivers. Lands managed by the
National Park Service are subject to the NPS Organic Act of 1916, which
provides that the ``fundamental purpose'' of those lands ``is to
conserve the scenery and the natural and historic objects and the wild
life therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the
enjoyment of future generations'' (16 U.S.C. 1). Most units of the
National Park System also have their own specific enabling legislation,
but the 1970 General Authorities Act makes it clear that all units are
united into a single National Park System. Furthermore, no activities
shall be allowed ``in derogation of the values and purposes for which
these various areas have been established, except as may have been or
shall be directly and specifically provided by Congress'' (16 U.S.C.
1a-1).
NPS regulations specifically protect wildlife, including nests, by
prohibiting disturbing wildlife or nests from their natural state and
by prohibiting take of wildlife and the intentional disturbance of
nesting or breeding activities (36 CFR 2.1(a), 2.2(a)). The basic
policy document applied to the NPS is Management Policies 2006
(``MP''). Those policies provide that NPS will manage natural resources
``to preserve fundamental physical and biological processes, as well as
individual species, features, and plant and animal communities,'' and
``will try to maintain all the components and processes of naturally
evolving park ecosystems'' (MP 4.1). With respect to wildlife, NPS
``will maintain as parts of the natural ecosystems of parks all plants
and animals native to park ecosystems'' by ``preserving and restoring
the natural abundances, diversities, distributions, habitats, and
behaviors of native plant and animal populations and the communities
and ecosystems in which they occur''; ``restoring native plant and
animal populations in parks when they have been extirpated by past
human-caused actions''; and ``minimizing human impacts on native
plants, animals, populations, communities, and ecosystems, and the
processes that sustain them'' (MP 4.4.1).
NPS relies on natural processes whenever possible to maintain
native species, but ``may intervene to manage individuals or
populations of native species'' if the intervention will not cause
unacceptable impacts to the population of the species or to the
ecosystem, and if it is necessary for one of several reasons, such as
an unnaturally high or low population due to human influences or to
protect a rare species (MP 4.4.2). Based on these requirements,
management of NPS lands has and will continue to support the
conservation needs of bald eagles, and there is little likelihood that
eagles on NPS lands will suffer habitat-based disturbance.
The Bureau of Land Management (BLM) manages lands with more than
200 bald eagle nests. Similar to the U.S. Forest Service, BLM lands are
generally managed for multiple-use purposes, under the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), which
includes a declaration of policy that ``the public lands be managed in
a manner that will protect the quality of scientific, scenic,
historical, ecological, environmental, air and atmospheric, water
resource, and archeological values; that, where appropriate, will
preserve and protect certain public lands in their natural condition;
that will provide food and habitat for fish and wildlife and domestic
animals; and that will provide for outdoor recreation and human
occupancy and use'' (43 U.S.C. 1701(a)(8). For mining activities, BLM
provides specific protections for eagle nests and concentration areas
(43 CFR 3461.5(k) and (l)). As with lands of the National Forest
System, such multiple-use practices are generally consistent with the
conservation needs of bald eagles because on a system-wide basis they
provide for a generally stable amount and distribution of bald eagle
habitat.
The Department of Defense and the U.S. Army Corps of Engineers
collectively manage lands that host more than 440 bald eagle nests.

[[Page 37362]]

Department of Defense facilities that support at least 275 of these
nests include some 43 Army, 17 Navy, 7 Air Force, and 3 Marine Corps
installations with nesting or regular eagle use. Under the Sikes Act,
the Secretary of Defense must provide for the conservation of natural
resources on each installation (16 U.S.C. 670a), with an Integrated
Natural Resources Management Plan. Each plan is prepared in cooperation
with the Service and the State wildlife agency. As appropriate to the
installation, the plan includes provisions for wildlife management
(with respect to all wildlife, not just species listed under the Act),
habitat enhancement, and wetland protection. As applicable, such plan's
primary management goals typically seek to maintain and improve
forested habitat for eagles, minimize human disturbance in eagle
nesting and wintering areas, improve food supplies, and minimize
hazards to eagles. Nests are protected by special management areas. To
maintain effective protections, installations have a priority to
monitor their nesting and wintering eagles.
In addition, two other authorities specific to management of
migratory birds (including bald eagles) on Department of Defense
installations are relevant. First, the Armed Forces are authorized by
regulation under the Migratory Bird Treaty Act to take migratory birds
incidental to military readiness activities (50 CFR 21.15). However,
this authorization is contingent upon the Armed Forces conferring and
cooperating with the Service to develop and implement appropriate
conservation measures to minimize and mitigate any significant adverse
effects on a population of a migratory bird species that the Armed
Forces determine may result from those activities. Second, on July 31,
2006, the Department of Defense entered into a Memorandum of
Understanding (MOU) with the Service under Executive Order 13186,
discussed below.
The remainder of the nests on Defense and Corps lands, at least 65
nests, are on lands managed by the Army Corps of Engineers. These lands
include major riparian corridors, such as the Mississippi and Missouri
Rivers, associated with large civil works projects maintained for
navigation and flood control. The projects, with their aquatic suitable
habitat for eagles, are likely to remain in place in the foreseeable
future. To the extent further work on these projects is proposed,
established policies require the Corps to consider opportunities to
enhance habitat for wildlife (33 CFR 236.4(b)), including bald eagles.
The Corps must also consult with the Service under a provision of the
Fish and Wildlife Coordination Act (16 U.S.C. 662) to determine how the
Corps can protect wildlife, again including bald eagles. While Defense
and Corps lands are managed primarily for military readiness and civil
projects, they have historically made significant, positive
contributions to eagle conservation. Eagles have also adapted to many
of the military, training, and operational activities on these lands.
Because of the management plans and conservation measures in place on
the Defense and Corps lands, the Service believes that these lands will
continue to contribute to eagle recovery for the foreseeable future.
According to the GIS analysis described above, approximately 40
percent of the total of approximately 15,000 known bald eagle nests
occur within the ``protected lands'' category where long-term adverse
habitat modification is unlikely to occur. Note that there are more
known nests than known breeding pairs. This is because some breeding
pairs have more than one nest and because some known nests are
abandoned (not currently maintained by any breeding pair). The
underlying data used in this analysis is with respect to all known
nests, and is without any indication of whether a particular nest is
currently active, serves as an alternate nest, or has been abandoned.
On the other hand, there are certainly additional nests on protected
lands (and elsewhere) currently used by breeding pairs that are not in
our data set. The pilot study conducted for the bald eagle post-
delisting monitoring plan indicates that the State data for number of
nests only accounts for 42 to 81 percent of actual nests (Otto 2007).
Although there is not a scientifically established quantitative
correlation between nests and breeding pairs, and therefore we cannot
state precisely how many breeding pairs in fact nest on protected lands
in a given year, these data give us an indication of the amount of
nesting habitat that is protected. Moreover, the 40 percent of nests on
protected lands are distributed throughout all areas that are
significant for breeding and wintering. These areas therefore will
provide protections to significant areas of bald eagle nesting,
roosting, perching, and feeding habitat and will continue to provide
strongholds throughout the range of the species in the foreseeable
future.
Combining the five recovery plans' goals for the bald eagle
breeding population leads to a total delisting goal of about 4,000
breeding pairs in the lower 48 States. This level, coincidentally,
represents about 40 percent of the 9,789 currently known breeding
pairs. While the numbers of recorded nests to breeding pairs are not
exact comparisons and, as indicated above, the protection on protected
lands is not absolute, our analysis does indicate that it is highly
likely that the number of breeding pairs necessary to maintain the
species' recovery can be accommodated for the foreseeable future on the
protected lands.
In addition to the habitat protection afforded on account of
management related to ownership, several other factors will limit the
degree to which habitat loss will occur on any lands in the foreseeable
future. First, eagle habitat in some areas, because of its remoteness,
faces little threat associated with human population expansion. For
example, northern Minnesota, Wisconsin, and Michigan have 2,859
breeding pairs and development pressures are negligible within the
northern portions of these States.
Second, a number of applicable laws will at least indirectly
protect bald eagle habitat. The most important of these is the BGEPA, a
Federal statute that applies throughout the United States regardless of
land ownership status. The BGEPA (16 U.S.C. 668-668d), enacted in 1940
and since amended, was then intended to be the primary vehicle to
protect and preserve bald eagles. The statute prohibits anyone, without
a permit issued by the Secretary of the Interior, from ``taking'' bald
eagles, including their parts, nests, or eggs (16 U.S.C 668(a)). The
BGEPA further defines ``take'' as ``pursue, shoot, shoot at, poison,
wound, kill, capture, trap, collect, molest or disturb'' (16 U.S.C.
668c).
Even after the bald eagle was added to the List of Threatened and
Endangered Wildlife under the Act, BGEPA's prohibition against
disturbance continued to be an important component in protecting eagles
from human interference. For instance, the Service, in conjunction with
various States, developed guidelines based upon BGEPA that have been an
essential component of our technical assistance to the public and have
helped people avoid harmful impacts to eagles.
But given that the BGEPA will now be the primary law preserving
bald eagles, and recognizing the need for predictability in
implementing it in the foreseeable future, we further clarified our
interpretation of the BGEPA's take prohibition. On June 5, 2007, we
published a final rule (72 FR 31132, effective on July 5, 2007)
defining the

[[Page 37363]]

term ``disturb'' under 50 CFR 22.3 as meaning:

to agitate or bother a bald or golden eagle to a degree that causes,
or is likely to cause, based on the best scientific information
available, (1) injury to an eagle, (2) a decrease in its
productivity, by substantially interfering with normal breeding,
feeding, or sheltering behavior, or (3) nest abandonment, by
substantially interfering with normal breeding, feeding, or
sheltering behavior (72 FR 31139).

This definition largely reflects how ``disturb'' has been interpreted
in the past by the Service and other Federal and State wildlife and
land management agencies. The final definition of ``disturb''
encompasses impacts that, based on the best scientific information
available, are likely to cause injury to an eagle, or a decrease in its
capacity to reproduce. This may include effects from disturbance caused
by habitat manipulation.
Although the BGEPA is not a land management law (it contains no
provisions that directly protect habitat except for nests), it does
protect eagles in their habitat. Activities that disrupt eagles at
nests, foraging areas, and important roosts can illegally disturb
eagles. Therefore, areas adjacent to eagle nests, important foraging
areas, and communal roost sites are indirectly accorded protection
under the BGEPA to the degree that their loss would disturb or kill
eagles. Those losses may result from habitat alteration. For instance,
in our final rule defining ``disturb'' we noted:

Removal of trees is not in itself a violation of the Eagle Act.
The impacts of such action can be a violation, however, if the loss
of the trees kills an eagle, or agitates or bothers a bald or golden
eagle to the degree that results in injury or interferes with
breeding, feeding, or sheltering habits substantially enough to
cause a decrease in productivity or nest abandonment, or create the
likelihood of such outcomes (72 FR 31137).

We also intend the definition to apply to a situation where eagles, as
part of their normal nesting behavior, return to the vicinity of the
nest, but the habitat alterations are so vast in scale that the eagles
become agitated as a result, alter their behavior, and never return to
the nest itself (72 FR 31136).
We have also finalized after public notice and comment National
Bald Eagle Management Guidelines (72 FR 31156; June 5, 2007) that are
to be used in conjunction with this new definition of the term
``disturb.'' The Guidelines are intended to: (1) Publicize the
provisions of the BGEPA that continue to protect bald eagles, in order
to reduce the possibility that people will violate the law; (2) advise
landowners, land managers, and the general public of the potential for
various human activities to disturb bald eagles; and (3) encourage
additional nonbinding land management practices that benefit bald
eagles. The Guidelines themselves are not law. Rather, they are
recommendations based on several decades of behavioral observations,
science, and conservation measures to avoid or minimize adverse impacts
to bald eagles. The document is intended primarily as a tool for
landowners and planners who seek information and recommendations
regarding how to avoid disturbing bald eagles.
It is important to note that the Guidelines contain numerous
recommendations that relate to bald eagle habitat. For instance, to
avoid disturbing nesting bald eagles, we recommend: (1) Keeping a
distance between the activity and the nest (distance buffers), (2)
maintaining preferably forested (or natural) areas between the activity
and around nest trees (landscape buffers), and (3) avoiding certain
activities during the breeding season. The buffer areas serve to
minimize visual and auditory impacts associated with human activities
near nest sites. Ideally, buffers would be large enough to protect
existing nest trees and provide for alternative or replacement nest
trees. Again, the primary purpose of these Guidelines is to provide
information that will minimize or prevent violations of only Federal
laws governing bald eagles.
When this rule becomes effective, the Act's protections and
prohibitions will no longer apply to the bald eagle. We recognize that
the above-described BGEPA habitat protections that will remain are not
identical to those afforded under the Act, nor are they intended to be.
There is, however, considerable overlap in the statutory definitions of
``take'' under both statutes (16 U.S.C. 1532(19) and 668c). Moreover,
the regulatory definitions of ``harm'' and ``harass'' (50 CFR 17.3)
that further define the term ``take'' under the Act are similar to the
newly promulgated ``disturb'' definition under BGEPA.
As described, we have interpreted ``disturb'' to include certain
biological or behavioral effects caused by activities, including some
habitat manipulation. This view is supported by the only court to have
addressed the relationship between the prohibitions of the Act and the
BGEPA:

Both the Act and the Eagle Protection Act prohibit the take of
bald eagles, and the respective definitions of ``take'' do not
suggest that the ESA provides more protection for bald eagles than
the Eagle Protection Act* * *. The plain meaning of the term
``disturb'' is at least as broad as the term ``harm,'' and both
terms are broad enough to include adverse habitat modification.

(Contoski v. Scarlett, Civ No. 05-2528 (JRT/RLE), slip op. at 5-6 (D.
Minn. Aug 10, 2006).
Unlike the Act, the BGEPA does not include a private right of
action, meaning a third party cannot bring legal action to enforce the
statute, but the BGEPA provides criminal and civil penalties for
persons who ``take, possess, sell, purchase, barter, offer to sell,
purchase or barter, transport, export or import, at any time or any
manner, any bald eagle * * * or any golden eagle, alive or dead, or any
part, nest, or egg thereof '' (16 U.S.C. 668 (b)). A violation of the
Act can result in a criminal fine of $100,000 ($200,000 for
organizations), imprisonment for one year, or both, for a first
offense. Penalties increase substantially for additional offenses, and
a second violation of this Act is a felony. We anticipate that
traditional governmental enforcement of the BGEPA prohibitions will
continue to have a deterrent effect despite the absence of a private
right of action.
Finally, the Act provides broad substantive and procedural
protections for listed species but at the same time allows significant
flexibility to permit activities that affect listed species. In
particular, the Act provides that we may exempt or authorize the
incidental take of listed wildlife in the course of otherwise lawful
activities (sections 7(b)(4) and 10(a)(1)(B), respectively).
Nationwide, since 2002, the Service has issued an average of 52
incidental take statements per year that covered anticipated take of
bald eagles under section 7 of the Act. During that same 5-year period,
we also issued about two (1.8) incidental take permits per year under
section 10(a)(1)(B) of the Act for bald eagles. The requirements,
including minimization, mitigation, or other conservation measures, of
those authorizations were designed to ensure that those actions did not
jeopardize the continued existence of the bald eagle. It is also
apparent that these limited authorizations did not impede the recovery
of the bald eagle. The number of section 7 informal consultations
concluding that the bald eagle would not likely be adversely affected
by a particular action is also notable. For example, in 2006, although
we issued 57 section 7 incidental take statements, we engaged in 5,184
informal consultations where take was either not anticipated, or
averted through early coordination, incorporation of

[[Page 37364]]

management recommendations, or project modification.
The regulations at 50 CFR part 22 govern the issuance of bald eagle
permits for certain types of take, transportation, and possession, such
as for Indian religious purposes, scientific research and exhibition,
and depredation. The BGEPA regulation does not presently contain take
mechanisms similar to that of the Act with respect to incidental take
coverage. On June 5, 2007, however, we published a proposed rule to
create such a permitting scheme under the BGEPA (72 FR 31141). The
public comment period closes on September 4, 2007. The regulations we
have proposed would (1) establish a take permit under the BGEPA, (2)
provide BGEPA authorizations comparable to the authorizations granted
under the Act to entities who continue to operate in full compliance
with the terms and conditions of permits issued under section 10 of the
Act and incidental take statements issued under section 7 of the Act,
and (3) authorize take of eagle nests in limited circumstances that
pose a risk to human safety or to the eagles themselves.
We anticipate that, if that proposal is adopted through the final
rule, the majority of permits would be issued to cover activities that
cause disturbance in proximity to eagle nests, important foraging
sites, and communal roosts. However, by adhering to the National Bald
Eagle Management Guidelines, landowners and project proponents will be
able to avoid bald eagle disturbance under the BGEPA most of the time.
We anticipate only rarely issuing permits for take associated with
activities that adhere to the Guidelines because the great majority of
such activities will not take bald eagles. In this capacity, the
Guidelines and technical advice that we will provide will function much
like our informal consultations under section 7 of the Act, but will be
available to all landowners. If when applying the Guidelines, avoiding
disturbance is not practicable, the project proponent may apply for a
take permit. Additionally, in some limited cases, where other forms of
take besides disturbance are unavoidable, we anticipate that a permit
may be issued for such other form of take.
For reasons enumerated in our proposal, we cautiously estimate the
number of eagle take permits would increase if the proposal is adopted
from an average of 54 authorizations currently issued under the Act to
300 BGEPA permits, annually. But we may only issue these authorizations
if they are ``compatible with the preservation'' of bald eagles (16
U.S.C. 668a). Like the Act, this BGEPA standard acknowledges that
limited take of eagles is not inconsistent with the protection of the
species.
As suggested in our proposed rule, we believe the demand for
permits, and the effects of issuing those permits, both individually
and cumulatively, including minimization and mitigation measures, would
not be significant enough to cause a decline in eagle populations from
current levels. Our proposal identifies a recognized threshold for
determining the level of decline that would be incompatible with the
BGEPA standard, which we regularly employ to assess other species we
manage under the MBTA. We recognize that external factors could arise
that negatively affect eagle populations. Whatever the cause, if data
suggest population declines are approaching a level where additional
take would be incompatible with the preservation of the eagle, we would
refrain from issuing permits until such time that we determine the take
would be compatible with the preservation of the bald eagle. For a
fuller explanation of the proposed threshold and safeguards, see the
proposed rule at 72 FR 31143-31144.
In summary, the BGEPA will remain in force following delisting. The
BGEPA prohibits the take of bald eagles, including disturbance, which
we have identified and interpreted to occur in some circumstances as a
result of habitat alteration. Adherence to the Guidelines, as
appropriate in a given situation, may provide for buffers or other
measures that protect bald eagle habitat on both private and public
lands. Although a take permitting scheme has been proposed, it should
not significantly diminish these habitat protections. The proposed
permitting mechanism should not reduce the bald eagle population to a
level that might necessitate re-listing. Rather, based on the current
proposal, we conclude that the number of anticipated permits, coupled
with BGEPA's protective ``preservation'' standard, should ensure that
the population will not decline below current levels. Therefore, we
expect BGEPA to contribute to the availability of habitat for the
recovered bald eagle population in the foreseeable future.
To a much lesser extent, the MBTA also provides indirect protection
to bald eagle habitat. The MBTA makes it unlawful to at any time, by
any means or in any manner, to pursue, hunt, take, capture, kill,
attempt to take, capture, or kill, possess, offer for sale, sell, offer
to barter, barter, offer to purchase, purchase, deliver for shipment,
ship, export, import, cause to be shipped, exported, or imported,
deliver for transportation, transport or cause to be transported, carry
or cause to be carried, or receive for shipment, transportation,
carriage, or export, any migratory bird, any part, nest, or eggs of any
such bird, or any product, whether or not manufactured, which consists,
or is composed in whole or part, of any such bird or any part, nest, or
egg thereof (16 U.S.C 703(a)). Bald eagles are among the migratory
birds protected by the MBTA. Therefore, a modification to eagle habitat
that directly takes or kills a bald eagle (such as cutting down a nest
tree with chicks present) would constitute a violation of the MBTA, as
well as the BGEPA.
The Clean Water Act (CWA) (33 U.S.C. 1251 et seq.) is the
cornerstone of surface water quality protection in the United States.
It will continue to protect aquatic habitats upon which the bald eagle
depends following delisting. The CWA employs a variety of regulatory
and non-regulatory tools to sharply reduce direct pollutant discharges
into waterways, finance municipal wastewater treatment facilities, and
manage polluted runoff. These tools are employed to achieve the broader
goal of restoring and maintaining the chemical, physical, and
biological integrity of the nation's waters so that they can support
``the protection and propagation of fish, shellfish, and wildlife and *
* * recreation in and on the water'' (33 U.S.C. 1251(a)(2)).
The first step in achieving these goals is the establishment of
water quality standards (WQS), either by States or the Environmental
Protection Agency (EPA) (33 U.S.C. 1313). Necessary reductions in
pollutant loading are achieved by implementing the following: (1) The
Section 402 National Pollution Discharge Elimination System permit
program, covering point sources of pollution; (2) the Section 404
permitting program, regulating the placement of dredged or fill
materials into wetlands and other waters of the United States; and (3)
Section 401, which requires federal agencies to obtain certification
from the State, territory, or Indian tribes before issuing permits that
would result in increased pollutant loads to a waterbody. Surface
waters are monitored to determine whether the WQS are met. If they are,
then anti-degradation policies and programs are employed to keep the
water quality at acceptable levels. If waterbodies are not meeting WQS,
they must be identified and a strategy for meeting the standards
developed. The most common type of strategy is the development of a
Total

[[Page 37365]]

Maximum Daily Load (TMDL). TMDLs determine what level of pollutant load
would be consistent with meeting WQS. TMDLs also allocate acceptable
loads among sources of the relevant pollutants. These regulatory
programs, coupled with the CWA's protective goals, will continue to
help protect the aquatic habitats and prey species of the bald eagle in
the foreseeable future.
In 2001, the President signed Executive Order 13186,
``Responsibilities of Federal Agencies to Protect Migratory Birds,''
requiring Federal agencies to incorporate migratory bird conservation
measures into their agency activities. Under this Executive Order, each
Federal agency whose activities may adversely affect migratory birds
was required to enter into a Memorandum of Understanding (MOU) with the
Service, outlining how the agency will promote conservation of
migratory birds. The Executive Order has a number of provisions that
specifically relate to habitat, including the requirements that
agencies, as practicable, (1) restore and enhance habitat, (2) prevent
or abate the pollution or detrimental alteration of the environment,
(3) design habitat conservation principles, measures, and practices
into agency plans and planning processes, (4) ensure that NEPA analyses
evaluate the effects of actions and agency plans on migratory birds,
with emphasis on species of concern, and (5) identify where
unintentional take reasonably attributable to agency actions is having,
or is likely to have, a measurable negative effect on migratory bird
populations, focusing first on species of concern, priority habitats,
and key risk factors.
The Executive Order also encourages an agency to implement those
criteria immediately even if it has not yet completed its MOU. Two MOUs
have been approved to date with the Department of Defense (U.S. FWS
2006d) and the Department of Energy (U.S. FWS 2006e) that emphasize a
collaborative approach to conservation of migratory birds, including
minimizing disturbance to breeding, migration, and wintering habitats.
While these MOUs are non-binding and therefore are not considered here
as existing regulatory mechanisms, they provide an opportunity for us
to continue to reduce the threat of habitat loss to bald eagles after
delisting by working with our Federal partners.
In addition, the Fish and Wildlife Coordination Act (16 U.S.C. 661-
667d) (FWCA) requires that agencies sponsoring, funding, or permitting
activities related to water resource development projects request
review by the Service and the State natural resources management
agency. The Service's review is non-binding, and therefore the
Coordination Act is not considered here as an existing regulatory
mechanism. However, given that bald eagles reside in aquatic habitats,
FWCA will allow the Service to continue to make recommendations on
minimizing and offsetting impacts that might occur from these types of
activities on bald eagles.
In conclusion, the bald eagle population is continuing to increase
in the lower 48 States, showing that reduced availability of habitat is
not a current threat to the species. Nesting habitat is secure on many
public and private locations throughout the lower 48 States. Although
localized habitat loss due to development may be a threat to individual
bald eagles in the foreseeable future, particularly on private lands,
we expect these threats will be reduced by the Federal laws that will
remain in effect after delisting (e.g., BGEPA, MBTA, and CWA) and will
not be of sufficient magnitude or intensity to threaten or endanger the
species throughout all or a significant portion of its range. In
addition, bald eagles have demonstrated increasing levels of tolerance
to human disturbance that will allow bald eagles to use habitats
previously thought to be unavailable due to disturbance.
Even in the areas where the threat of development is the greatest,
we find that the bald eagle is secure for the foreseeable future. In
the Chesapeake Bay region, as discussed in our response to comments
above, at least 482 breeding pairs nest on federal lands, and we do not
anticipate that number to drop in the foreseeable future, even if the
numbers of breeding pairs eventually begin to decrease on some other
lands (particularly private lands). Even in Florida, where the
development pressure outside of protected lands is likely to be
greatest, the current population of over 1,133 breeding pairs could
suffer a substantial decrease (which we think unlikely within the
foreseeable future, for all of the reasons discussed above) without the
bald eagle being or likely to become in danger of extinction. The
recovery goal for the southeastern region, as updated by the recovery
team, is for 1,500 breeding pairs. The southeastern region includes
Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi,
North Carolina, South Carolina, Tennessee, and eastern Texas. Florida's
current bald eagle estimate alone is 76 percent of what would be needed
for the entire 11-State region. Florida would have to reverse its
upward trend and lose nearly two-thirds of its current breeding pairs
to get back down to the southeastern recovery goal. We have no data
suggesting that a change of this magnitude is reasonably foreseeable.
Finally, although the limited habitat available in Arizona makes the
bald eagles there particularly vulnerable to habitat threats, as
discussed elsewhere, Arizona is not a significant portion of the range
of the bald eagle, and what threats do exist there will not affect the
conservation of the species throughout all of the lower 48 States, much
less its entire range. Therefore, threats of present or future
destruction, modification, or curtailment of the bald eagle's habitat
or range do not rise to the level where the bald eagle population in
the lower 48 States meets the definition of either threatened or
endangered throughout all or a significant portion of its range.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes. The bald eagle population's first major threat
was large-scale mortality from unregulated shooting that occurred early
in the last century. The threat was significantly reduced when the
shooting of bald eagles was prohibited in 1940 with the Bald Eagle
Protection Act, which is now the BGEPA. Shooting of bald eagles was
prohibited by an additional law when bald eagles were added to the list
of birds protected by the MBTA in 1972.
The Madison National Wildlife Health Center monitored causes of
wildlife mortality, between 1963 and 1993, including bald eagle
mortality. Out of the 4,300 bald and golden eagles rangewide (including
Alaska) that were known to be killed, 15 percent of the bald eagles
were killed due to shooting (La Roe et al. 1995, p. 68). Even if all of
the 4,300 eagle deaths that were investigated were bald eagles, the
deaths from shooting would be around 645 deaths spread across a 30-year
timeframe. In 1997, Alaska alone had 8,250 breeding pairs (Buehler
2000, p. 37), and the Service estimated the lower 48 States population
as 5,295 breeding pairs. In addition, during this same timeframe, the
bald eagle population continued to increase, suggesting that this level
of mortality was not a serious threat to the bald eagle in the lower 48
States. Since this threat is not centered in any specific geographic
area, there are no significant portions of the range that might be
threatened for this reason with extinction in the foreseeable future.
There is no legal commercial or recreational use of bald eagles,
and such uses of bald eagles will remain illegal

[[Page 37366]]

into the foreseeable future under BGEPA and MBTA. We consider current
laws and enforcement measures sufficient to protect the bald eagle from
illegal activities, including trade. The BGEPA prohibits the taking or
possession of, and commerce in, bald and golden eagles, with limited
exceptions. The law provides significant protections for bald eagles by
prohibiting, without specific authorization, take, possession, sale,
purchase, barter, offering to sell or purchase or barter, transport,
export or import any bald or golden eagle, alive or dead, or any part,
nest, or egg thereof. Take under the BGEPA is defined as ``to pursue,
shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or
disturb'' (16 U.S.C. 668c).
The Service will continue to enforce the take prohibitions in the
BGEPA. Over the past 5 years, the Service has seen an increase in the
investigation of suspected BGEPA violations. In 2006, 324 cases under
BGEPA were investigated, a portion of which were bald eagles (Garlick
2007). Legal imports and exports of bald eagle parts, feathers, and
live birds have increased over the past 5 years. In 2006, there were
142 bald eagle imports and exports of which the Service is aware
(Garlick 2007). These numbers are still relatively low compared to the
bald eagle population in the lower 48 States of 9,789 breeding pairs,
particularly given that many of these circumstances did not involve
taking of live birds from the wild. As the population of bald eagles
continues to increase, we would expect a corresponding increase in the
number of investigations. We expect that even if this same low level of
illegal take, and import and export of eagle feathers and parts, to
continue in the foreseeable future, it will be without any significant
effects to the species.
The bald eagle is a designated migratory bird that benefits from
protections under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-
712), which implements various treaties and conventions between the
United States and Canada, Japan, Mexico, and the former Soviet Union
for the protection of migratory birds. Unless permitted by regulations,
the MBTA provides that it is unlawful to pursue, hunt, take, capture,
or kill; attempt to take, capture or kill; possess, offer for sale,
sell, offer to barter, barter, offer to purchase, purchase, deliver or
cause to be shipped, exported, imported, transported, carried or
received any migratory bird, part, nest, egg or product, manufactured
or not.
We exercise very strict control over the use of bald eagles or
their parts for scientific, education, and Native American religious
activities (50 CFR 22.21, 22.22). To respond to the religious needs of
Native Americans, we established the National Eagle Repository in
Commerce City, Colorado, which serves as a collection point for dead
eagles (see 50 CFR 21.31(e)(4)(vi)(C)). As a matter of policy, all
Service units (as well as many other Federal and State agencies)
transfer salvaged bald eagle parts and carcasses to this repository.
Members of Federally recognized tribes can obtain a permit from us
authorizing them to receive and possess whole eagles, parts, or
feathers from the repository for religious purposes. After removal from
protection under the Act, we will still have the ability to issue
permits under BGEPA for limited exhibition and education purposes,
selected research work, and other special purposes, including Native
American religious use, consistent with Federal regulations
implementing the BGEPA (50 CFR part 22). We will not issue these
permits if they are incompatible with the preservation of the bald
eagle under the BGEPA or the terms of the conventions underlying the
MBTA (16 U.S.C. 668a and 16 U.S.C. 704(a), respectively), and
therefore, these permits are not a threat to the bald eagle population
in the lower 48 States.
In summary, there is no current overutilization of the bald eagle
for commercial, recreational, scientific, or educational purposes, and
the protections afforded by BGEPA and MBTA will continue to reduce this
threat to prevent the likelihood of endangerment for the bald eagle in
the lower 48 States or a significant portion of its range into the
foreseeable future.
C. Disease or Predation. Predation has been documented, but it does
not constitute a significant problem for bald eagle populations. Eggs,
nestlings, and fledglings are the most vulnerable to predators. Eggs in
tree nests have been reportedly predated by black-billed magpies (Pica
pica), gulls, ravens and crows, black bears (Ursus americanus), and
raccoons (Procyon lotor). Nestlings have been reportedly killed by
black bears, raccoons, hawks and owls, crows and ravens, bobcat (Felis
rufus), and wolverine (Gulo gulo), although there is little actual
documentation. Nestling mortality is more likely due to the effects of
starvation and sibling attack. Few nonhuman species are capable or
likely to prey on immature or adult bald eagles. The exception to this
is at the time of nest departure; fledglings on the ground are
vulnerable to mammalian predators.
Immatures and adults in poor condition from starvation, injury, or
disease may also be vulnerable to mammalian predators. Bald eagles will
defend their nest against other avian species, especially ravens and
other raptor species (Buehler 2000, p. 14).
Diseases such as avian cholera, avian pox, aspergillosis,
tuberculosis, and botulism may affect individual bald eagles, as do
parasites such as the Mexican chicken bug, but are not considered to be
a significant threat to overall bald eagle numbers. According to the
National Wildlife Health Center (NWHC) in Madison, Wisconsin, only a
small percentage of bald eagles submitted to the NWHC between 1985 and
2003 died of infectious disease. The widespread distribution of the
species generally helps to protect the bald eagle from catastrophic
losses due to disease. Recently, H5N1 high path avian influenza may
affect eagles. Currently the Department of the Interior is testing
migratory birds for the presence of H5N1 high path avian influenza. At
this time, there are no confirmed cases of migratory birds, including
bald eagles, testing positive for avian influenza in the United States
(USGS 2007a).
Based on data compiled from the National Wildlife Health Center, 99
bald eagles died of avian vacuolar myelinopathy (AVM) between 1994 and
2003. Confirmed cases of bald eagle deaths due to AVM are recorded in
Arkansas, North Carolina, South Carolina, and Georgia. Studies on avian
vacuolar myelinopathy are continuing, but the cause is still unknown.
Natural or manmade toxins are suspected as the most likely cause of AVM
based on histopathological findings. A sentinel study demonstrated that
exposure to the agent that causes AVM is site-specific, seasonal, and
relatively short in duration (USGS 2007b). These States' bald eagle
populations have increased between 1994 and 2005, and, based on the
most recent population estimates, have a total of 392 breeding pairs.
Based on the increase in the population levels, these localized
mortalities are not having a significant impact on the bald eagle in
the lower 48 States or these portions of the range. We do not expect
this disease to be a threat in the foreseeable future because there has
been no increase in the number of mortalities throughout the 9 years of
monitoring and the number of mortalities is extremely small in relation
to the total population. The mortalities are also small in relation to
the population in these portions of the range, such that these portions
will not become threatened in the foreseeable future.
In more recent years, the West Nile Virus (WNV) has affected some
individual bald eagles. According to

[[Page 37367]]

NWHC, between January 2002 and January 2004, 81 bald eagles were tested
for WNV at the Center, and four tested positive. Individual States have
also conducted tests on dead bald eagles with an overall small
percentage testing positive. For example, the State of New York
annually counts the number of bald eagles residing in the State, which
has averaged more than 300 individual bald eagles each year since 2000.
Within the State of New York, only two confirmed cases of WNV have been
present. Given the small percentage of bald eagle mortality due to WNV,
we expect this threat will not significantly affect the bald eagle
population in the lower 48 States or any significant portion of its
range in the foreseeable future.
During several years in the 1990s, bald eagles wintering along the
lower Wisconsin River experienced an unusual rate of mortality.
Beginning in 2000-2001, after a gap of 5 years, similar bald eagle
mortality has reoccurred each winter, with less than 30 confirmed cases
as of 2004. Many of the eagles exhibit signs of neurologic impairment.
One hypothesis is that the syndrome is caused by a severe thiamine
deficiency as a result of feeding largely on gizzard shad, but that
hypothesis remains to be adequately tested (Wisconsin Department of
Natural Resources 2005). This syndrome is very localized, and is not
having a significant impact on the Statewide bald eagle population
given that Wisconsin's eagle population has been rising each year since
the mid-1980s, with 1,065 nesting pairs counted in 2006 (Eckstein 2007,
p. 3). Given the small percentage of Wisconsin bald eagles affected by
this disease, this threat will not affect the lower 48 States' bald
eagle population in all or a significant portion of its range in the
foreseeable future.
In summary, like all wildlife populations, the bald eagle is
affected by numerous natural and environmentally related diseases, as
well as predation. While these diseases and predation may have
measurable impacts on small, local populations, no known natural or
environmentally related disease threats currently have, or are
anticipated to have, widespread impacts on the bald eagle population in
the lower 48 States. While these impacts are measurable, they are not
affecting those small areas given the increase in the population levels
of bald eagles in those areas. We do not expect an increase in this
threat in the foreseeable future, and, therefore, this is not a threat
to any significant portion of the bald eagle's range. Therefore,
neither predation nor disease is likely to constitute a significant
threat to the bald eagle currently or in the foreseeable future
throughout all or any significant portion of its range.
D. The Inadequacy of Existing Regulatory Mechanisms. As with all of
the five factors, we have to determine whether any particular factor is
a threat to the species. The main threats to the bald eagle at the time
of listing were threats to reproductive success from contaminants and
habitat loss or degradation. Regulatory mechanisms, in and of
themselves, were never identified as a threat for bald eagles.
Indirectly, regulatory mechanisms were needed to assure that the
threats identified in the other factors were removed or reduced.
Because we address these regulatory mechanisms in the other factors, we
will only mention them briefly in this section.
The BGEPA explicitly protects individuals and nests (16 U.S.C.
668); it will also minimize threats to bald eagle habitat because acts
that disturb bald eagles, their nests, or their eggs violate the
prohibitions of the BGEPA. The MBTA also provides protection by making
it unlawful to pursue, hunt, take, capture, or kill; attempt to take,
capture or kill; possess, sell, barter, purchase, deliver; or cause to
be shipped, exported, imported, transported, carried or received any
migratory bird (which bald eagles are considered), part, nest, egg or
product, manufactured or not. In addition to these laws that provide
direct protection to the bald eagle, the Clean Water Act and the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7 U.S.C.
136 et seq.) provide regulations indirectly contributing to the
reduction of various manmade threats. Given the level of threats
identified in the discussion of the other factors, these protections,
taken together, provide adequate regulatory mechanisms for the bald
eagle in the lower 48 States in the foreseeable future, and, therefore,
factor D is not a threat throughout all or any significant portion of
the range.
E. Other Natural or Manmade Factors Affecting Its Continued
Existence. Bald eagles have been subjected to direct and indirect
mortality from a variety of human-related activities such as poisoning
(including indirect lead poisoning), electrocution, collisions (such as
impacts with vehicles, power lines, or other structures), and death and
reproductive failure resulting from exposure to pesticides.
The first major decline in the bald eagle population probably began
in the mid to late 1800s. Widespread shooting for feathers and trophies
led to extirpation of eagles in some areas. Shooting also reduced part
of the bald eagle's prey base (waterfowl and shorebirds). Carrion
treated with strychnine, thallium sulfate, and other poisons was used
as bait to kill livestock predators and indirectly killed many eagles
as well. These were the major factors that contributed to a reduction
in bald eagle numbers through the 1940s. Shooting and poisoning of bald
eagles and other migratory birds is now prohibited by BGEPA and MBTA,
as discussed in Factor B.
In the late 1940s, shortly after World War II, the use of dichloro-
diphenyl-trichloroethane (DDT) and other organochlorine pesticide
compounds became widespread. Initially, DDT was sprayed extensively
along coastal and other wetland areas to control mosquitoes (Carson
1962, p. 122). Later, it was widely used as a general crop insecticide.
Dichlorophenyl-dichloroethylene (DDE), the principal metabolic
breakdown product of DDT, devastated eagle productivity from the 1950s
through the mid-1970s. DDE accumulated in the fatty tissue of adult
female bald eagles, and impaired calcium metabolism necessary for
normal eggshell formation, causing eggshell thinning. Many eggs broke
during incubation, while others suffered embryonic mortality resulting
in massive reproductive failure. On December 31, 1972, the U.S.
Environmental Protection Agency, under the authority of FIFRA, canceled
and suspended registration of DDT in the United States.
The threat of death and reproductive failure was dramatically
reduced in 1972 when DDT was banned from use in the United States. An
additional step to halt the bald eagle's decline was taken in 1976,
when FIFRA registrations of dieldrin, heptachlor, chlordane, and other
toxic persistent pesticides were cancelled for all but the most
restricted uses in the United States. The residual effects of DDT are
now highly localized and have a negligible impact on the bald eagle
population in the lower 48 States.
The organochlorine compound concentrations are continuing to
decline even in the localized areas in which high levels have persisted
through time. For instance, the Channel Islands area of southern
coastal California has historically had severe problems related to DDE
impacts to bald eagle productivity because this was a DDT manufacturing
site (64 FR 35460). On March 16, 2006, biologists with the Montrose
Settlements Restoration Program announced that a bald eagle egg
successfully hatched on Santa Cruz Island in the Northern Channel
Islands (NOAA 2007, p. 1). This bald eagle

[[Page 37368]]

successfully fledged and took its first flight on July 14, 2006 (NOAA
2007, p. 1). This is the first successful bald eagle fledging on the
Northern Channel Islands since 1949 when they nested on Anacapa Island
(NOAA 2007, p. 1). Given the recent success in this area, other areas
that had high levels of organocholorine concentrations will likely show
similar success in the foreseeable future.
The threat of pesticide-related impacts on bald eagles will
continue to decline after delisting due to the requirement that
pesticides be registered with the Environmental Protection Agency
(EPA). Under the authority of FIFRA, the EPA requires environmental
testing of new pesticides. It specifically requires testing the effects
of pesticides on representative wildlife species before a pesticide is
registered. The registration process provides a safeguard to avoid the
type of environmental catastrophe that occurred from organochlorine
pesticides, such as DDT, that led to the listing of this species as
endangered. In addition, the Food Quality Protection Act (1996) has
resulted in a similar EPA review of existing pesticides already on the
market. This protection from effects of pesticides afforded under the
FIFRA will continue into the future even after delisting the bald eagle
under the Act.
Polychorinated biphenyls (PCBs) have been demonstrated to cause a
variety of adverse health effects including effects on the immune
system, reproductive system, nervous system, and endocrine system. In
1976, manufacturing, processing, and distribution in commerce of PCBs
were prohibited by Section 6(e) of the Toxic Substances Control Act (15
U.S.C 2601, 2605(e)). Some industrial and commercial applications where
PCBs were used include: Electrical, heat transfer, and hydraulic
equipment; as plasticizers in paints, plastics, and rubber products;
and in pigments, dyes, and carbonless copy paper. More than 1.5 billion
pounds of PCBs were manufactured in the United States prior to 1977
(U.S. EPA 2007, p. 1). PCBs do not readily break down and may persist
in the environment for decades. Individual bald eagles may consume prey
that has accumulated high levels of PCBs, leading to a risk of
reproductive failure (Bowerman 1993). Given the prohibitions in the use
of PCBs, we expect impaired reproductive success because of PCBs to be
relatively low and localized to those areas in the range where
concentrations remain relatively high. Monitoring of concentrations of
PCBs throughout each of the Great Lakes has shown concentrations of
PCBs in lake trout that are stable or decreasing (Environment Canada
and the U.S. EPA 2005, pp. 122-131). Although there are areas around
the Great Lakes that have not yet recovered to the level present before
persistent organic pollutants were used, the reproductive rates in the
shoreline populations of Great Lakes bald eagles as a whole have
increased. This population increase indicates that widespread effects
of persistent organic pollutants have decreased (Environment Canada and
U.S. EPA, 2005 p. 272). Given that PCB use is prohibited and monitoring
data show the levels of PCBs decreasing, we expect the effects of PCBs
to continue to decrease in the foreseeable future and not to affect the
bald eagle population in the lower 48 States or any significant portion
of its range.
Mercury occurs naturally in the earth's crust and cycles in the
environment as part of both natural and human-induced activities. The
amount of mercury mobilized and released into the biosphere has
increased since the beginning of the industrial age. Mercury has long
been known to have toxic effects on humans and wildlife. Mercury is a
toxic, persistent, bioaccumulative pollutant that affects the nervous
system.
Mercury is emitted into the atmosphere by industrial activities
like coal-fired power generation. It can travel long distances in the
atmosphere and can be deposited on the surface of the earth in remote
areas far from the industry emitting the atmospheric mercury. Mercury
that accumulates in soil can be transported to waterways in runoff and
subsurface water flow. Once in the water, mercury begins to accumulate
in the aquatic organisms, with concentrations highest at the top of the
food chain. Methylmercury is the form of mercury that bioaccumulates in
fish. Mercury contamination is the most frequent basis for fish
advisories, represented in 60 percent of all water bodies with
advisories. Forty-one States have advisories for mercury in one or more
water bodies, and 11 States have issued Statewide mercury advisories.
Consumption of prey with elevated levels of mercury can cause
adverse effects on growth, development, reproduction, metabolism and
behavior in birds (Eisler 1987, p. 36). Elevated levels of mercury have
been reported in bald eagles in the Northeast, Great Lakes region,
Northwest, Florida, and recently Montana. An ongoing study of the
exposure and impacts of mercury on bald eagles in Maine and New
Hampshire indicates that concentration levels are suggestive of
reproductive or behavioral impacts (DeSorbo and Evers 2006, p. 5).
However, bald eagle population levels in these areas have continued to
increase even with the increasing mercury concentration levels. While
potentially high levels of mercury may be present in localized areas,
there currently are no data suggesting that the bald eagle populations
in these localized areas are adversely affected. If the mercury
concentration did increase in these isolated small areas, only a few
bald eagle pairs would be affected around these particular lakes. These
lakes would likely be too small to meaningfully contribute to the
resilience, redundancy, or representation of the bald eagle in the
lower 48 States. Therefore, mercury exposure currently is having a
negligible impact on the bald eagle population in the lower 48 States
and any significant portions of its range.
EPA has recognized the need for regulations for water-quality
criteria and in 2001 announced a new water quality-criterion for
methylmercury that is protective of human health. On August 9, 2006,
EPA announced draft guidance for implementing the water quality
criterion (71 FR 45560). Given that high mercury concentrations affect
a variety of different species, including humans, we expect that under
the current laws mercury levels will continue to be monitored and
managed to a point that mercury will not have significant adverse
effects on the bald eagle population in the lower 48 States or a
significant portion of its range in the foreseeable future.
Lead poisoning has caused death and suffering in birds and other
wildlife for many years. Bald eagles died from lead poisoning as a
result of feeding on waterfowl that were killed or crippled by hunters
using lead shot. Bald eagles also died from feeding on waterfowl prey
that had inadvertently ingested lead shot in the environment as they
fed. Since 1991, the Service has recommended phasing out of lead shot
for waterfowl hunting (U.S. FWS, 2006b, p. 2). However, the use of lead
shot continues in most States for hunting upland game birds. Another
contributor to possible lead poisoning is use of lead fishing sinkers.
Such use remains legal in every State except New Hampshire, and could
potentially pose a threat to the bald eagle. However, according to a
report in 1995, after 30 years of study, lead poisoning was diagnosed
in only 338 eagles, including both bald and golden, from 34 States.
Even if a majority of these deaths were bald eagles over the 30-year
period, this represents a relatively small number of bald eagles given
the large increase we have seen in the population during that same
timeframe (LaRoe et al. 1995. p.

[[Page 37369]]

68). Lead poisoning is a threat to a very few individual bald eagles
each year and we do not expect the numbers of bald eagles affected by
lead to increase given the increased public awareness of the threats
posed by using lead shot.
Other causes of injury and mortality to individual bald eagles
continue to exist. Of the 4,300 bald and golden eagle deaths
investigated between the early 1960s and 1990s, accidental death and
impacts with vehicles, power lines, or other such structures accounted
for 23 percent of the bald eagle deaths rangewide (including Alaska)
(LaRoe et al. 1995. p. 68). Low numbers of these types of impacts can
be found scattered throughout the population, and are not concentrated
in any specific geographic region of the lower 48 States. Because these
threats are found in low levels throughout the population, the
population as a whole can absorb these impacts. Considering the
increase in the population size of bald eagles in the lower 48 States
during the time period studied, these impacts were not a significant
threat to the population as a whole. Given the 30-year time period
studied and the continued increase in the population size during that
time period, this threat will likely not increase in the foreseeable
future to the point where the bald eagle in the lower 48 States or a
significant portion of its range will meet the definition of threatened
or endangered under the Act.
Raptor electrocution has been a concern since the early 1970s and
accounted for 12 percent of the causes of bald eagle mortality in the
4,300 bald and golden eagle deaths studied since the 1960s (LaRoe et
al. 1995. p. 68). Generally, electrocutions are more prevalent in sites
where a susceptible species' prey base is present and where suitable
perches, other than power structures, are lacking. Birds can be
electrocuted during any season, but there can be seasonal fluctuations
in electrocution frequency that are related to weather conditions or
bird behavior (USGS 1999, p. 358). Raptor electrocutions generally can
be reduced by adopting safe electrical-pole-and-line configurations or
managing raptor perching. With the increase in the bald eagle
population, electrocution mortality has likely increased (Koppie
2007a). However, given the continued increase in the population, the
effects of such deaths are negligible on the population as a whole and
there are no particular areas within the range where this threat is
concentrated. The Service and the Edison Electric Institute's Avian
Power Line Interaction Committee (APLIC) have worked together to
develop guidelines to minimize the incidence of bird electrocutions on
power lines. Their ``Avian Protection Plan Guidelines'' provide
detailed guidance to utility company employees for minimizing and
avoiding the incidence of bird electrocutions, including the bald
eagle. They are used in conjunction with APLIC's ``Suggested Practices
for Raptor Protection on Power Lines: The State of the Art in 2006'' to
reduce the number of avian electrocutions on existing and new utility
poles. Although this is only guidance, it illustrates the collaborative
working relationship to minimize bird electrocution. Given the small
number of individual birds that are killed by electrocution and the
continued increase in the population size, this is not a significant
threat to the bald eagle in the lower 48 States or a significant
portion of its range currently or in the foreseeable future.
Development of wind energy production facilities is increasing in
localized areas of the lower 48 States, especially in the Atlantic
coast flyway area. National projections by the U.S. Department of
Energy for U.S. onshore installed wind-energy capacity show an increase
from 11.9 GW in 2005 to 72.2 GW in 2020 (National Academy of Sciences
2007). Some wind power facilities have caused mortality to birds of
prey and other avian species. There is no evidence, however, indicating
that bald eagles have been taken to date. But post-construction studies
at existing wind power facilities have been limited in scope and
duration, and facilities are now being proposed in areas where bald
eagles are more likely to occur. Bald eagles may still be susceptible
to mortality, injury, or disturbance in the future if wind energy
facilities are not carefully sited to avoid breeding, foraging, or
migratory areas. But BGEPA and MBTA prohibitions on the take of bald
eagles will still apply after delisting, thereby creating an incentive
for thoughtful siting and design of future wind facilities. If wind
power development is not carefully planned, bald eagle take may occur
in the foreseeable future. But we currently do not have any data
indicating that this threat would rise to the level of causing the bald
eagle population to be threatened or endangered, especially given the
protections afforded by BGEPA and the MBTA.
The main cause of bald eagle endangerment in the lower 48 States,
the use of pesticides, has been reduced by cancellation or limitations
placed on use of key pesticides under FIFRA. Some contaminants are
still prevalent in certain local areas of the lower 48 States that
cause death or reduced productivity in a small number of eagles within
the population. In addition, several other minor threats remain for
individual bald eagles, including electrocution and vehicle strikes.
However, due to the large geographic range of the bald eagle and its
widespread recovery, these localized negative impacts appear to have a
negligible effect on regional or national populations and, therefore,
are not threats to the bald eagle population in the lower 48 States. We
have determined that these other natural or manmade factors affecting
the bald eagle are not likely to cause the bald eagle to become
endangered or threatened in the foreseeable future throughout all or
any significant portion of its range.

Conclusion of the 5-Factor Analysis

As required by the Act, we considered the five potential threat
factors to assess whether the bald eagle is threatened or endangered
throughout all or a significant portion of its range in the lower 48
States. When considering the listing status of the species, the first
step in the analysis is to determine whether the species is in danger
of extinction throughout all of its range. If this is the case, then
the species is listed in its entirety. For instance, if the threats on
a species are acting only on a portion of its range, but they are at
such a large scale that they place the entire species in danger of
extinction, we would list the entire species.
The wide distribution of bald eagles throughout the lower 48
States, combined with the eagles' ability to exploit a wide range of
geographic aquatic habitat settings, provides an important buffer
against any potential threats to any of the significant portions of the
range and to the species as a whole. Bald eagles have demonstrated
increasing levels of tolerance of human activities that will allow bald
eagles to use habitats previously thought to be unavailable due to the
proximity of human activities. Several regulatory mechanisms will
remain after delisting that will continue to protect bald eagles and
their nests. Approximately 40 percent of the bald eagle nests occur on
areas where long-term adverse habitat modification is unlikely to
occur, including National Wildlife Refuges, National Parks, and
National Forests. The BGEPA, MBTA, and CWA will continue to limit
threats to habitat.
Large-scale mortality from unregulated shooting, like that which
occurred early in the last century, has been eliminated and is
prohibited by both the BGEPA and the MBTA. Like all wildlife
populations, the bald eagle is affected by numerous natural and
environmentally related diseases.

[[Page 37370]]

However, these localized effects on individuals are not significantly
affecting the bald eagle population in the lower 48 States or a
significant portion of its range, nor are they likely to do so within
the foreseeable future.
The main cause of bald eagle endangerment in the lower 48 States,
the use of certain organochlorine pesticides, has been banned or
reduced. While some contaminants are still prevalent in certain local
areas of the lower 48 States, these localized impacts are not having a
significant effect on the population levels of bald eagles in the lower
48 States. Regulatory mechanisms such as FIFRA will continue to
regulate levels of contaminants such that the bald eagle in the lower
48 States will likely not become endangered in the foreseeable future.
Moreover, the existing regulatory mechanisms summarized here have been
proven adequate to control all of the potentially significant human-
caused threats identified for the species.
Bald eagle recovery goals have been met or exceeded for the species
on a rangewide basis. There is no recovery region in the lower 48
States where we have not seen substantial increases in eagle numbers.
We believe the surpassing of recovery targets over broad areas and on a
regional basis, and the continued increase in eagle numbers since the
1995 reclassification from endangered to threatened, demonstrates that
threats have been reduced or eliminated such that the bald eagle
population in the lower 48 States no longer meets the definition of
threatened or endangered.
Having determined that the bald eagle in the lower 48 States does
not meet the definition of threatened or endangered, we must next
consider whether there are any significant portions of its range that
are in danger of extinction or are likely to become endangered in the
foreseeable future. On March 16, 2007, a formal opinion was issued by
the Solicitor of the Department of the Interior, ``The Meaning of `In
Danger of Extinction Throughout All or a Significant Portion of Its
Range' '' (U.S. DOI 2007). We have summarized our interpretation of
that opinion and the underlying statutory language below. A portion of
a species' range is significant if it is part of the current range of
the species and is important to the conservation of the species because
it contributes meaningfully to the representation, resiliency, or
redundancy of the species. The contribution must be at a level such
that its loss would result in a decrease in the ability to conserve the
species.
The first step in determining whether a species is threatened or
endangered in a significant portion of its range is to identify any
portions of the range of the species that warrant further
consideration. The range of a species can theoretically be divided into
portions in an infinite number of ways. However, there is no purpose to
analyzing portions of the range that are not reasonably likely to be
significant and threatened or endangered. To identify only those
portions that warrant further consideration, we determine whether there
is substantial information indicating that (i) the portions may be
significant and (ii) the species may be in danger of extinction there
or likely to become so within the foreseeable future. In practice, a
key part of this analysis is whether the threats are geographically
concentrated in some way. If the threats to the species are essentially
uniform throughout its range, no portion is likely to warrant further
consideration. Moreover, if any concentration of threats applies only
to portions of the range that are unimportant to the conservation of
the species, such portions will not warrant further consideration.
If we identify any portions that warrant further consideration, we
then determine whether in fact the species is threatened or endangered
in any significant portion of its range. Depending on the biology of
the species, its range, and the threats it faces, it may be more
efficient in some cases for the Service to address the significance
question first, and in others the status question first. Thus, if the
Service determines that a portion of the range is not significant, the
Service need not determine whether the species is threatened or
endangered there; conversely, if the Service determines that the
species is not threatened or endangered in a portion of its range, the
Service need not determine if that portion is significant.
The terms ``resiliency,'' ``redundancy,'' and ``representation''
are intended to be indicators of the conservation value of portions of
the range. Resiliency of a species allows the species to recover from
periodic disturbance. A species will likely be more resilient if large
populations exist in high-quality habitat that is distributed
throughout the range of the species in such a way as to capture the
environmental variability within the range of the species. It is likely
that the larger size of a population will help contribute to the
viability of the species. Thus, a portion of the range of a species may
make a meaningful contribution to the resiliency of the species if the
area is relatively large and contains particularly high-quality habitat
or if its location or characteristics make it less susceptible to
certain threats than other portions of the range. When evaluating
whether or how a portion of the range contributes to resiliency of the
species, it may help to evaluate the historical value of the portion
and how frequently the portion is used by the species. In addition, the
portion may contribute to resiliency for other reasons--for instance,
it may contain an important concentration of certain types of habitat
that are necessary for the species to carry out its life-history
functions, such as breeding, feeding, migration, dispersal, or
wintering.
Redundancy of populations may be needed to provide a margin of
safety for the species to withstand catastrophic events. This does not
mean that any portion that provides redundancy is a significant portion
of the range of a species. The idea is to conserve enough areas of the
range such that random perturbations in the system act on only a few
populations. Therefore, each area must be examined based on whether
that area provides an increment of redundancy that is important to the
conservation of the species.
Adequate representation ensures that the species' adaptive
capabilities are conserved. Specifically, the portion should be
evaluated to see how it contributes to the genetic diversity of the
species. The loss of genetically based diversity may substantially
reduce the ability of the species to respond and adapt to future
environmental changes. A peripheral population may contribute
meaningfully to representation if there is evidence that it provides
genetic diversity due to its location on the margin of the species'
habitat requirements.
To determine whether the bald eagle is threatened in any
significant portion of its range, we first considered how the concepts
of resiliency, representation, and redundancy apply to the conservation
of this particular species. The recovery of the bald eagle in the lower
48 States provides important perspective. The species has demonstrated
that it had sufficient resiliency and redundancy to recover from a
severe population crash. That recovery was due in large part to the
widespread distribution of the species: once the threats (most
significantly the use of DDT) were removed, the population began to
expand back into the main breeding and wintering areas that we
currently see today housing a majority of the population. These
breeding and wintering areas are distributed in such a fashion as to

[[Page 37371]]

capture a majority of the latitudinal and environmental conditions that
vary throughout the range. Approximately 75 percent of the breeding
population occurs in these key core areas that are distributed
throughout the northern, southern, eastern, and northwestern portions
of the lower 48 States. In general, the large breeding areas have large
expanses of aquatic habitat such as Florida, the Chesapeake Bay region,
Maine, the Great Lakes, and the Pacific Northwest (Buehler 2000, p. 1).
Winter habitat can also be characterized by having roost sites that are
open and close to water with good food availability (Buehler 2000, pp.
3, 7). Bald eagles tend to congregate in large population centers
during the winter such that large populations are present in a few
areas that have good habitat characteristics. In the lower 48 States,
these wintering concentration areas are found mainly along rivers in
the Pacific Northwest, including the Puget Sound and the lower Klamath
Basin; and along major inland river systems in the Midwest and the
Chesapeake Bay.
The main breeding and wintering areas again provide adequate
resiliency and redundancy for the bald eagles in the lower 48 States.
Although there is little data on the genetic diversity within the
species, these same areas appear to provide for adequate
representation. A variation in body size in bald eagle individuals is
present that is likely due to environmental temperature changes in
latitude, as discussed in the significance discussion in the DPS
section of this rule. Bald eagles in the southern States tend to be
smaller and lighter than eagles found in the northern States
(Stalmaster 1987, pp. 16-17). However, we do not have any data
currently suggesting this morphological difference is heritable. Even
if this trait was heritable, the current distribution of the main
breeding and wintering areas discussed above does capture this
environmental variation.
Applying the process described above for determining whether a
species is threatened in a significant portion of its range, we next
addressed whether any portions of the range of the bald eagle in the
lower 48 States warranted further consideration. We noted that, as
discussed in Factor E, there are several small geographic areas where
localized contaminant threats still exist. However, we concluded that
these did not warrant further consideration because (1) they are very
small (in the context of the range of this species) and affect only a
few bald eagles, and thus there was no substantial information that
they were a significant portion of the range, or (2) the contaminant
levels are decreasing and eagle populations increasing, and thus there
was no substantial information that the bald eagles in these areas were
likely to become in danger of extinction in the foreseeable future.
In contrast, the threat of habitat loss discussed in Factor A found
in Florida and the Chesapeake Bay region is distributed over relatively
larger geographic areas of obvious importance to bald eagle
conservation. Therefore, we determined that these areas warranted
further consideration as portions of the range that may be both
significant and threatened. However, as discussed separately in the
Factor A analysis, we conclude that the threat of habitat loss in
Florida and the Chesapeake Bay region does not rise to the level that
the bald eagle is likely to become in danger of extinction in these
portions of the range in the foreseeable future. Therefore, we need not
determine whether Florida or the Chesapeake Bay region constitute a
significant portion of the bald eagle's range.
Finally, we decided to assume that the Sonoran Desert population,
as well as the population in the broader area of the Southwest
(Arizona, New Mexico, Utah, and Nevada), of which the Sonoran Desert
population is the major component, warranted additional consideration
out of an abundance of caution and based on the controversy concerning
the status of the bald eagles in this region. The following provides
our analysis of whether these portions of the range are significant.
Turning first to the question of whether the Sonoran Desert portion
of the range makes a meaningful contribution to the representation of
the bald eagle, we note that the Sonoran Desert population is a
peripheral population, and, as such, requires special consideration, as
differing environmental conditions at the periphery of a species' range
may give rise to genetic adaptations valuable to the long-term
conservation of the species. However, as discussed immediately above
and in detail in the DPS analysis, there is no evidence that the
morphological and behavioral characteristics of bald eagles in the
Sonoran Desert are genetically based (and, therefore, heritable). Even
if they were genetically based, the best available data suggest that
those characteristics are sufficiently represented in other portions of
the species' range. Therefore, we conclude that the Sonoran Desert
population does not make a meaningful contribution to the
representation of the bald eagle. We reach the same conclusion for the
broader population in the Southwest because there is no evidence that
the breeding pairs in the broader area have adaptations that are not
sufficiently represented in other portions of the range.
Next, we conclude that the Sonoran Desert and broader southwest
portions of the range do not make a meaningful contribution to the
resiliency of the bald eagle. As discussed previously, habitat
suitability determines the density and distribution of bald eagle
populations. The Southwest, for example, does not contain particularly
high-quality habitat: it does not support large expanses of the bald
eagle's preferred breeding habitat type of forested areas adjacent to
large bodies of water (Buehler 2000, p. 6). Therefore, this geographic
area, both historically and currently, supports a small number of
breeding pairs that are more widespread and fewer in number compared to
other regions with abundant prey and nest substrate (Jacobsen et al.
2006, p. 27). Several accounts suggest that the breeding areas may have
been more widespread prior to European development; however, these
accounts do not suggest a large breeding population ever occurred in
this region of the United States.
The isolation of the Sonoran Desert population and the fact that
the ecological setting in the Southwest differs somewhat from other
portions of the bald eagle range might provide some insulation from
threats that in the future may affect other portions of the range.
Therefore, these portions of the range might make some contribution to
the resiliency of the species. However, we find that any such
contribution is minor, and, therefore, not meaningful because of the
small number of pairs that are present in this area. Nor does the
southwestern portion of the range include any important concentration
of habitat necessary to carry out the life-history functions of the
bald eagle.
Finally, we conclude that the Sonoran Desert and broader
southwestern portions of the range do not make a meaningful
contribution to the redundancy of the bald eagle. As discussed above,
even the broader southwestern portion of the range contains only a
small number of bald eagles and a tiny portion of the suitable habitat
in the lower 48 States. Given the overall numbers of eagles and their
broad distribution in the lower 48 States, the southwestern portion of
the range provides almost no redundancy to the species.
In light of the above, we conclude that neither the Sonoran Desert
nor the Southwest constitute a significant

[[Page 37372]]

portion of the range of the bald eagle in the lower 48 States, and its
loss would not result in a decrease in the ability to conserve the bald
eagle. Therefore, we do not need to determine whether either of these
portions of the range are in fact threatened. We note that although we
have determined that these portions of the range are not significant
for the purposes of section 4 of the Act, we recognize that the bald
eagles in the Southwest have great importance to people in this region,
particularly Native Americans, and will continue to be protected under
the BGEPA. We will continue to work with the States, tribes, and
conservation organizations in this region continue to conserve the bald
eagle in the southwestern United States.
In summary, the bald eagle has made a dramatic resurgence from the
brink of extinction. The banning of DDT, coupled with the cooperative
conservation efforts of the Service, States, other Federal agencies,
non-government organizations, and individuals, have all contributed to
the recovery of our National symbol. We have determined that none of
the existing or potential threats, either alone or in combination with
others, are likely to cause the bald eagle to become in danger of
extinction within the foreseeable future throughout all or any
significant portion of its range. The bald eagle no longer requires the
protection of the Act, and, therefore, we are removing it from the
Federal List of Endangered and Threatened Wildlife.

Effects of This Rule

This final rule revises 50 CFR 17.11(h) to remove the bald eagle in
the lower 48 States from the Federal List of Endangered and Threatened
Wildlife, and also removes the special rule for the bald eagle at 50
CFR 17.41(a). The prohibitions and conservation measures provided by
the Act, particularly sections 7, 9, and 10 no longer apply to this
species. Federal agencies will no longer be required to consult with us
under section 7 of the Act in the event that activities they authorize,
fund, or carry out may affect the bald eagle. Critical habitat was not
designated for the bald eagle, so the delisting will not affect
critical habitat provisions of the Act.
The provisions of the Bald and Golden Eagle Protection Act and the
Migratory Bird Treaty Act (including prohibitions on the taking of bald
eagles) will remain in place. This rule will not affect the bald
eagle's status as a threatened or endangered species under State laws
or suspend any other legal protections provided by State law. This rule
will not affect the bald eagle's Appendix II status under CITES.
For existing section 7 and 10 authorizations under the Act that
cover bald eagles, the Service will honor existing Act exemptions and
authorizations of incidental take until such time as the Service
completes a final rulemaking for permits under the Bald and Golden
Eagle Protection Act. We do not intend to refer for prosecution the
incidental take of any bald eagle under the Migratory Bird Treaty Act
of 1918, as amended (16 U.S.C. 703-712), or the Bald and Golden Eagle
Protection Act of 1940, as amended (16 U.S.C. 668-668d), if such take
is in full compliance with the terms and conditions of an incidental
take statement issued to the action agency or applicant under the
authority of section 7(b)(4) of the Act or the terms and conditions of
a permit issued under the authority of section 10(a)(1)(B) of the Act.
The Service has proposed a rulemaking to establish criteria for
issuance of a permit to authorize activities that would ``take'' bald
eagles under the Bald and Golden Eagle Protection Act (72 FR 31141,
June 5, 2007). The comment period for the proposed rulemaking will
close on September 4, 2007. Applying the preservation standard of the
BGEPA, we do not anticipate that the proposed permitting program would
reduce the bald eagle population below its current level.

Post-Delisting Monitoring

Section 4(g)(1) of the Act requires us, in cooperation with the
States, to implement a monitoring program for not less than 5 years for
all species that have been recovered and delisted. The purpose of this
requirement is to develop a program that detects the failure of any
delisted species to sustain itself without the protective measures
provided by the Act. If, at any time during the monitoring period, data
indicate that protective status under the Act should be reinstated, we
can initiate listing procedures, including, if appropriate, emergency
listing. We have proposed a draft post-delisting monitoring plan in a
separate part of today's Federal Register and expect to finalize that
post-delisting monitoring plan within a year.

Paperwork Reduction Act

This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). An agency 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.

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).

References Cited

A complete list of all references cited herein is available upon
request from the Headquarters Office (see FOR FURTHER INFORMATION
CONTACT section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

Sec. 17.11 [Amended].

0
2. Section 17.11(h) is amended by removing the entry for ``Eagle,
bald'' under ``BIRDS'' from the List of Endangered and Threatened
Wildlife.

Sec. 17.41 [Amended].

0
3. Section 17.41 is amended by removing and reserving paragraph (a).

Dated: June 28, 2007.
Dirk Kempthorne,
Secretary of the Interior.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. 07-4302 Filed 7-6-07; 8:45 am]

BILLING CODE 4310-55-P