[Federal Register: August 14, 2008 (Volume 73, Number 158)]
[Proposed Rules]
[Page 47574-47577]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au08-17]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 22
[FWS-R9-MB-2008-0057; 91200-1231-9BPP-L3]
RIN 1018-AV81
Eagle Permits; Take Necessary To Protect Interests in a
Particular Locality
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; notice of availability of draft environmental
assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (we or us), announce
the availability of a draft environmental assessment (DEA) evaluating
options for managing take of bald eagles and golden eagles under the
Bald and Golden Eagle Protection Act (Eagle Act). The DEA examines the
effects of the action we proposed in a June 5, 2007 proposed rulemaking
to establish two new permits under the Eagle Act (72 FR
[[Page 47575]]
31141), and two additional alternatives. We are soliciting current data
regarding populations of both eagle species for the DEA. We are also
seeking input regarding criteria to be used in quantifying take that
occurs at important eagle-use areas, such as foraging areas, communal
roost sites, or other concentration areas. Further, we are reopening
the comment period on the proposed rule, which is the preferred
alternative of the DEA. We have made some revisions and additions to
the preferred alternative based on public comment received during the
comment period on the proposed rule. Revisions of a substantive nature
are noted in the Background section of this notice, and discussed more
fully in the DEA.
DATES: Send your comments on the DEA and/or proposed rule by September
15, 2008.
ADDRESSES: We will post the DEA on http://www.fws.gov/migratorybirds/,
or you may contact the Division of Migratory Birds Management at 4410
North Fairfax Drive, MS 4107, Arlington, VA 22203-1610. You may submit
comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AV81; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Diana Whittington, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, at 703-358-
2010.
SUPPLEMENTARY INFORMATION:
Public Comments
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. Please note
that we may not consider comments we receive after the date specified
in the DATES section in our final determination.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that we will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Division of Migratory Bird Management, 4501 N.
Fairfax Drive, 4th Floor, Arlington, VA 22203; telephone (703) 358-
2010.
Background
On June 5, 2007, we published in the Federal Register a proposed
rule (72 FR 31141) to provide certain authorizations to take bald
eagles and golden eagles under the Eagle Act (16 U.S.C. 668-668d). The
rule would establish a permit to authorize take that is associated with
otherwise-lawful activities but which is not the purpose of the
activity. In addition to authorizing the impacts of new activities, we
proposed to use the new permit to extend Eagle Act take authorization
to take previously exempted from the prohibitions of the Endangered
Species Act (ESA) (16 U.S.C. 1531 et seq.) under ESA section 7. A
second type of permit proposed in the rulemaking would authorize
intentional take of eagle nests in rare cases where their location
poses a risk to the public welfare or to the eagles themselves.
Finally, the rule contained a proposed regulatory provision that would
provide take authorization under the Eagle Act to ESA section 10
permittees who continue to operate in full compliance with the terms
and conditions of their existing permits.
We are finalizing the proposed actions under two separate
rulemakings. The authorizations associated with extending Eagle Act
authorization to bald eagle take previously authorized under the ESA
are categorically excluded from the requirement to prepare an
environmental assessment under the National Environmental Policy Act
(NEPA) (42 U.S.C. 4321-4347d) under Departmental procedures. In order
to have those authorizations available at the earliest practical date,
we have bifurcated the proposed rule. We are finalizing the ESA-related
provisions ahead of the subject of the DEA we are releasing today,
which is the remainder of the proposal.
We have prepared the DEA under NEPA to analyze alternatives
associated with the two new permit regulations we proposed in June. In
the DEA, we considered three alternatives for managing take under the
Eagle Act.
Under Alternative 1, we would finalize regulations to extend Eagle
Act authorization to bald eagle take that is authorized under the ESA,
but we would not promulgate the additional regulations we proposed to
(1) authorize take that is associated with, but not the purpose of, an
action, and (2) authorize nest removal to protect safety and public
welfare. This is the ``No Action'' alternative because the only action
that we would finalize is the one we would address in a separate
rulemaking and is not subject to this environmental assessment.
Under Alternative 2, in addition to finalizing the actions
described under Alternative 1, we would promulgate regulations for both
of the proposed permits, but permits to authorize take that is
associated with, but not the purpose of, an action would be limited to
disturbance. No other forms of take would be authorized. We could
authorize programmatic disturbance and nest take if the permittee
implements advanced conservation practices (see discussion below).
Alternative 3 is the proposed action, with modifications, and the
preferred alternative. Alternative 3 includes all elements of
Alternative 2, with the addition that take that results in mortalities
could also be authorized. Based on public comment received on the June
5, 2007, proposed rule, and on new information compiled through the
process of drafting the DEA, we have made some modifications to the
preferred alternative. In addition to a variety of minor revisions,
Alternative 3 contains the following additions and changes to the
proposed rule:
As discussed above, we split the rule into two rules that
we will finalize separately from one another. We separated the original
proposal to extend (or ``grandfather'') Eagle Act take authorization to
take previously authorized under the ESA from the remainder of the
provisions in order to finalize the ``grandfathering'' provisions more
expeditiously.
We modified our interpretation (provided in the June 5,
2007, proposed rule) of the statutory mandate that permitted take be
``compatible with the preservation of the bald eagle or the golden
eagle.'' In the original proposal, we proposed to use the standard that
regional and national eagle populations not decline at a rate greater
than 0.54% annually. Our preferred alternative now requires increasing
or stable regional populations to meet the ``preservation'' standard.
[[Page 47576]]
The rule would include issuance criteria to ensure that,
except for safety emergencies, Native American religious needs are
given first priority if requests for permits exceed take thresholds
that are compatible with the preservation of the bald eagle or the
golden eagle.
The rule would no longer provide different issuance
criteria for lethal versus non-lethal take. Rather, it proposes
separate provisions for programmatic take versus individual instances
of take. Programmatic take (take that is recurring and not in a
specific, identifiable timeframe and/or location) would be authorized
only where it is unavoidable despite implementation of comprehensive
measures (``advanced conservation practices'') developed in cooperation
with the Service to reduce the take below current levels. ``Advanced
conservation practices'' refers to scientifically-supportable measures
representing the best available techniques designed to reduce
disturbance and ongoing mortalities to a level where remaining take is
unavoidable.
The rule would amend the existing eagle depredation permit
regulations at 50 CFR 22.23 to extend permit tenure beyond 90 days for
purposes of hazing eagles. The purpose of these revisions would be to
enable issuance of permits that combine programmatic authorizations
provided under Sec. 22.23 and the new proposed take regulations (e.g.,
for airport safety purposes).
The rule would expand (from the proposed rule) the
purposes for which eagle nests may be taken to include where necessary
to protect public health and welfare. The proposed rule limited nest
removal to emergencies where human or eagle safety was imminently
threatened. Nest removal for emergencies would be retained, and would
authorize the removal and/or relocation of active and inactive nests
where genuine safety concerns necessitate their removal. The broader
application would allow us to issue permits to remove only inactive
nests in some circumstances where the presence of the nest does not
immediately threaten injury or loss of life, but does interfere with
maintenance or expansion of infrastructure needed to protect overall
public health and welfare. An example of the broader application would
be a site in an underserved community where a new hospital is to be
built, where the building was designed to avoid three eagle nests in a
territory, but as construction is set to begin, eagles build a new nest
in the only remaining available building site. In this situation
(depending on consideration of any other relevant factors), take of the
nest may be considered necessary to protect public health and welfare,
even though take is not necessary to alleviate an immediate safety
threat.
In such situations, where the take of an inactive nest is necessary
to protect public health and welfare, but not to alleviate an immediate
threat to safety, two additional criteria must be met before we may
issue a nest take permit under this section. First, we may not issue
the permit unless alternative suitable nesting and foraging habitat is
available. Second, the permittee will be required to mitigate for the
detrimental impacts to eagles to the fullest extent practicable.
We propose to redefine some terms and introduce new
definitions for a number of additional terms used in the regulations,
as follows:
We would define ``eagle nest'' as a ``readily identifiable
structure built, maintained, or used by bald eagles or golden eagles
for breeding purposes.'' This definition is based on, and replaces, the
existing golden eagle nest definition, in order to apply to both
species. We would remove the existing definition of ``golden eagle
nest'' from the list of definitions. Similarly, we would replace the
old definition of ``inactive nest'' with a new definition that also
includes bald eagles as well as golden eagles. The new definition would
read: ``a bald eagle or golden eagle nest that is not currently being
used by eagles as determined by the absence of any adult, egg, or
dependent young at the nest for 10 consecutive days. An inactive nest
may become active again and remains protected under the Eagle Act.''
The proposed permit regulations under Sec. 22.26 introduced the
term ``important eagle-use area'' to refer to nests, biologically
important foraging areas, and communal roosts, where eagles are
potentially likely to be taken as the result of interference with
breeding, feeding, or sheltering behaviors. We now propose to define
``important eagle-use area'' as ``an eagle nest, foraging area, or
communal roost site that eagles rely on for breeding, sheltering, or
feeding, and the landscape features surrounding such nest, foraging
area, or roost site that are essential for the continued viability of
the site for breeding, feeding, or sheltering eagles.'' This term
refers to the particular areas, within a broader area where human
activity occurs, where eagles are more likely to be taken (e.g.,
disturbed) by the activity because of the higher probability of
interference with breeding, feeding, or sheltering behaviors at those
areas.
We are also proposing to define terms used within the definition of
``important eagle-use area.'' We would define ``foraging area'' to mean
``an area where eagles regularly feed during one or more seasons.'' We
would define ``communal roost site'' as ``an area where eagles gather
repeatedly in the course of a season and shelter overnight and
sometimes during the day in the event of inclement weather.'' Not all
foraging areas and communal roost sites are important enough that
interfering with eagles at the site will cause disturbance (resulting
in injury or nest abandonment.) Whether eagles rely on a particular
foraging area or communal roost site to that degree will depend on a
variety of circumstances, most obviously, the availability of alternate
sites for feeding or sheltering.
``Territory'' would be defined as ``a defended area that contains,
or historically contained, one or more nests within the home range of a
mated pair of eagles, and where no more than one pair breeds at a
time.''
``Cumulative effects'' would mean ``the incremental environmental
impact or effect of the proposed action, together with impacts of past,
present, and reasonably foreseeable future actions.''
We would define ``indirect effects'' as ``effects that are caused
by an action and which may occur later in time or be located beyond the
initial impacts of the action, but are still reasonably foreseeable.''
The preferred alternative continues to include the requirement that
an applicant avoid and minimize impacts to eagles to the maximum extent
practicable, and document the existing measures in their application
for a permit. ``Practicable'' would be defined as ``capable of being
done after taking into consideration, relative to the magnitude of the
impacts to eagles, (1) the cost of remedy comparative with proponent
resources; (2) existing technology; and (3) logistics in light of
overall project purposes.''
An additional provision that would be included in the final rule to
implement our preferred alternative pertains to the authorizations
granted through the other final rulemaking (to extend Eagle Act
authorization to take authorized under the ESA) that we separated from
the action for which this environmental assessment is being carried
out. Under the preferred alternative, the final regulations to
establish a new permit for take of eagles where the take is associated
with, but not the purpose of, the activity would include a provision
that applies to anyone granted take
[[Page 47577]]
exemptions under section 7 of the ESA. This would apply in areas where
the bald eagle remains listed or is re-listed under the ESA or if the
golden eagle becomes listed. Of those persons, those who are issued
their section 7 exemptions whose activities will also take eagles under
the Eagle Act, and who wish to obtain Eagle Act authorization for that
take, would be required to use the new permit regulations at 50 CFR
22.26 that are the subject of this DEA, once those regulations are
available, rather than the expedited permit being established under
separate regulations.
Authority: The authority for this action is the Bald and Golden
Eagle Protection Act (16 U.S.C. 668-668d).
Dated: July 28, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-18779 Filed 8-13-08; 8:45 am]
BILLING CODE 4310-55-P