Endangered and Threatened Wildlife and Plants; Final Rule to Reclassify the Bald Eagle From Endangered to Threatened in All of the Lower 48 States

SUMMARY: The Fish and Wildlife Service reclassifies under the

Endangered Species Act of 1973 (Act), as amended, the bald eagle

(Haliaeetus leucocephalus) from endangered to threatened in the lower

48 States. The bald eagle remains classified as threatened in Michigan,

Minnesota, Wisconsin, Oregon, and Washington where it is currently

listed as threatened. The special rule for threatened bald eagles is

revised to include all lower 48 States. This action will not alter

those conservation measures already in force to protect the species and

its habitats. The bald eagle also occurs in Alaska and Canada, where it

is not at risk and is not protected under the Act. Bald eagles of

Mexico are not listed at this time due to a recently enacted moratorium

on listing additional taxa as threatened or endangered.

EFFECTIVE DATE: August 11, 1995.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Fish and Wildlife

Service, Ecological Services Field Office, 4469-48th Avenue Court, Rock

Island, Illinois, 61201 and at the Division of Endangered Species, Fish

and Wildlife Service, 1 Federal Drive, Whipple Federal Building, Fort

Snelling, Minnesota 55111-4056.

FOR FURTHER INFORMATION CONTACT: Jody Gustitus Millar, Bald Eagle

Recovery Coordinator, Fish and Wildlife Service, 4469-48th Avenue

Court, Rock Island, Illinois 61201 (309/793-5800).

SUPPLEMENTARY INFORMATION:

Background

Literally translated, Haliaeetus leucocephalus means white-headed

sea eagle. This large, powerful, brown bird with a white head and tail

is well known as our Nation's symbol. Young bald eagles are mostly dark

brown until they reach four to six years of age and may be confused

with the golden eagle (Aquila chrysaetos). The bald eagle is the only

sea eagle regularly occurring on the North American continent (American

Ornithologists' Union 1983). Its range extends from central Alaska and

Canada to northern Mexico.

The bald eagle is a bird of aquatic ecosystems (Gerrard and

Bortolotti 1988). It frequents estuaries, large lakes, reservoirs,

major rivers, and some seacoast habitats. However, such areas must have

an adequate food base, perching areas, and nesting sites to support

bald eagles. In winter, bald eagles often congregate at specific

wintering sites that are generally close to open water and that offer

good perch trees and night roosts. Bald eagle habitats encompass both

public and private lands.

The bald eagle was first described in 1766 as Falco leucocephalus

by Linnaeus. This South Carolina bird was later renamed as the southern

bald eagle, subspecies Haliaeetus leucocephalus leucocephalus

(Linnaeus), when, in 1897, Townsend identified the northern bald eagle

as Haliaeetus leucocephalus alascanus (American Ornithologists' Union

1957). These two subspecific names were in use when the southern bald

eagle (arbitrarily declared to occur south of the 40th parallel) was

listed (32 FR 4001, March 11, 1967) as endangered under the Endangered

Species Protection Act of 1966 (16 U.S.C. 668aa-668cc). By the time the

bald eagle was listed (43 FR 6233, February 14, 1978) for the entire

lower 48 States, the subspecies were no longer recognized by

ornithologists.

The bald eagle historically ranged throughout North America except

extreme northern Alaska and Canada and central and southern Mexico.

Bald eagles nested on both coasts from Florida to Baja California, in

the south, and from Labrador to the western Aleutian Islands, Alaska,

in the north. In many of these areas they were abundant.

Gerrard and Bortolotti (1988) describe early population trends as

follows. When Europeans first arrived on the North American continent,

there were an estimated one-quarter to one-half million bald eagles.

The first major decline in the bald eagle population probably began in

the mid to late 1800's. It coincided with declines in numbers of

waterfowl and shorebirds and other major prey species. Direct eagle

killing was also prevalent, and, coupled with loss of nesting habitat,

these factors reduced bald eagle numbers until the 1940's.

In 1940, the Bald Eagle Protection Act (16 U.S.C. 668) was passed.

This law prohibits the take, possession, sale, purchase, barter, offer

to sell, purchase or barter, transport, export or import, of any bald

eagle, alive or dead, including any part, nest, or egg, unless allowed

by permit. Take includes pursue, shoot, shoot at, poison, wound, kill,

capture, trap, collect, or molest or disturb.

The Bald Eagle Protection Act and increased public awareness of the

bald eagle resulted in a partial recovery or a slower decline of the

species in most areas of the country. However, persecution continued,

notably in Alaska, which was exempted from the Bald Eagle Protection

Act and maintained a bounty on bald eagles. In 1952, after lengthy

studies demonstrated that bald eagles were not affecting salmon

numbers, Alaska was no longer exempted.

Shortly after World War II, the use of dichloro-diphenyl-

trichloroethane (DDT) and other organochlorine compounds became

widespread. Initially, DDT was sprayed extensively along coastal and

other wetland areas to control mosquitos (Carson 1962). Later it was

used as a general insecticide. As DDT accumulated in individual bald

eagles from ingesting contaminated food, the species' reproduction

plummeted. In the late 1960's and early 1970's, it was determined that

dichlorophenyl-dichloroethylene (DDE), the principal breakdown product

of DDT, accumulated in the fatty tissues of the adult females and

impaired calcium release that is necessary for egg shell formation,

thus inducing thin shells and reproductive failure.

In response to the decline following World War II, the Secretary of

the Interior, on March 11, 1967 (32 FR 4001), listed bald eagles south

of the 40th parallel as endangered under the Endangered Species

Preservation Act of 1966. The northern bald eagle was not included in

that action primarily because the Alaskan and Canadian populations were

not considered endangered in 1967. On December 31, 1972, DDT was banned

from use in the United States.

In 1973, the Endangered Species Act (16 U.S.C. 1531 et seq.) was

passed. Among other provisions, it allowed the listing of distinct

populations of animal species and the addition of a new category of

``threatened.'' The Act defines an endangered species as a species that

is in danger of extinction throughout all or a significant portion of

its range. A threatened species is defined as any species that is

likely to become an endangered species within the foreseeable future

throughout all or a significant portion of its range.

[[Page 36001]]

A nationwide bald eagle survey by the Service and a number of other

agencies and conservation groups in 1974 revealed that, in parts of the

northern half of the lower 48 States, bald eagle populations and

reproductive success were lower than in certain southern areas. In

1978, the Service listed the bald eagle, Haliaeetus leucocephalus (no

subspecies referenced) throughout the lower 48 States as endangered

except in Michigan, Minnesota, Wisconsin, Washington, and Oregon, where

it was designated as threatened (43 FR 6233, February 14, 1978).

Restoring endangered and threatened animals and plants to the point

where they are again viable, self-sustaining members of their

ecosystems is the main goal of the Endangered Species Act. Thus, the

Act contains recovery, as well as listing and protection, provisions.

To effect recovery, section 4(f) of the Act provides for the

development and implementation of recovery plans for listed species.

According to the Act, a recovery plan is a plan for the conservation

and survival of the species. It identifies, describes, and schedules

the actions necessary to restore endangered and threatened species to a

more secure biological condition.

In establishing a recovery program for the species in the mid-

1970's, the Service divided the bald eagles of the lower 48 States into

five recovery regions, based on geographic location. A recovery plan

was prepared for each region by separate recovery teams composed of

species experts in each geographic area. The teams set forth goals for

recovery and identified tasks to achieve those goals. Coordination

meetings were held regularly among the five teams to exchange data and

other information. The five recovery regions and the dates of their

approved recovery plans are as follows: Chesapeake Bay (1982, revised

1990), Pacific (1986), Southeastern (1984, revised 1989), Northern

States (1983), and Southwestern (1982). The Northern States plan is

under revision and is expected to be available for public review within

the next six months. Many of the tasks described within these recovery

plans have been funded and carried out by the Service and other

Federal, State, and private organizations. Annual expenditures for the

recovery and protection of the bald eagle by public and private

agencies have exceeded $1 million each year for the past decade

(Service files).

In the 17 years since it was listed throughout the conterminous 48

States, the bald eagle population has clearly increased in number and

expanded in range. The improvement is a direct result of the banning of

DDT and other persistent organochlorines, habitat protection, and from

other recovery efforts. In 1963, a National Audubon Society survey

reported only 417 active nests in the lower 48 States, with an average

of 0.59 young produced per active nest. In 1994, about 4,450 occupied

breeding areas were reported by the States with an estimated average

young per occupied territory (for 4110 territories) of 1.17. Compared

to 1974, the number of occupied breeding areas in the lower 48 States

has increased by 462 percent, and since 1990, there has been a 47

percent increase. The species is doubling its breeding population every

6-7 years since the late 1970's.

Table 1.--Number of Bald Eagle Pairs Counted in Lower 48 States, 1963-

1994

[Missing years indicate incomplete data]

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

Year Number

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

1963......................................................... 417

1974......................................................... 791

1981......................................................... 1188

1984......................................................... 1757

1986......................................................... 1875

1988......................................................... 2475

1989......................................................... 2680

1990......................................................... 3020

1991......................................................... 3391

1992......................................................... 3747

1993......................................................... 4016

1994......................................................... 4452

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

The Act requires periodic review of the status of listed species.

When the status of the bald eagle was reviewed the Service recognized

the achievement of specific recovery plan reclassification goals. As a

result of this review, the Service issued the proposed rule for

reclassification to threatened status in all or portions of four

recovery regions and proposed classification of those eagles in Mexico

as endangered (59 FR 35584, July 12, 1994). The current action

finalizes the reclassification to threatened for all five recovery

regions where not already so listed but excludes the bald eagles of

Mexico due to a recently imposed moratorium on new listings (PL 104-6,

109 Stat 73, April 10, 1995).

The five bald eagle recovery plans were first approved in the early

1980's. The biological basis for the recovery goals is described in

each recovery plan. The five recovery regions are illustrated on the

following map:

BILLINB CODE 4310-55-P

[[Page 36002]]

[GRAPHIC][TIFF OMITTED]TR12JY95.001

BILLING CODE 4310-55-C

A summary follows of each recovery region's reclassification and

delisting goals, an estimation of progress to date in achieving those

goals, and final Service action. The term ``occupied territories''

indicates that a pair of bald eagles has established a breeding

territory and a nest site but was not necessarily successful in

producing young. ``Young'' or ``young produced'' are fledged young. All

numbers are based upon known eagle nests and are not estimates.

Surveys, particularly those before the late 1970's, miss some pairs, so

all figures are considered to be minimums.

Chesapeake Recovery Region

Reclassification Goals: Sustaining 175-250 breeding pairs with a

productivity level of 1.1 young per active nest, concurrent with

sustained progress in habitat protection measures.

Delisting Goals: Sustaining 300-400 pairs with an average

productivity of 1.1 young per active nest over five years with

permanent protection of sufficient habitat to support this nesting

population and enough roosting and foraging habitat to support

population levels commensurate with increases throughout the Atlantic

coastal area.

Progress to Date: 356 occupied territories and 1.1 young per

occupied territory reported in 1994. Progress in habitat protection has

been sustained and additional habitat is being protected. There have

been in excess of 175 known occupied breeding areas since 1988; 1992

was the first year in which there were more than 300. Reclassification

goals have been met, and delisting goals have been met for three of the

required five years.

Service Action: Reclassify to threatened.

Northern Recovery Region

Reclassification Goals: No goal for reclassification to threatened

status in present plan.

Delisting Goals: 1,200 occupied breeding areas distributed over a

minimum of 16 States with an average annual productivity of at least

1.0 young per occupied nest.

Progress to Date: In 1994, there were 1772 known occupied

territories distributed over 21 States with an estimated 1.26 young per

occupied territory (based upon the 1473 territories included in

productivity surveys). Productivity was 1.00 in 1990, 0.97 in 1991,

1.01 in 1992, and 0.95 in 1993. (Productivity is estimated from

incomplete surveys for Wisconsin and Minnesota in 1992 and 1993.

Productivity data are also incomplete from Wisconsin in 1990 and 1991;

partial productivity surveys were conducted during those years).

Delisting

[[Page 36003]]

goals have been met for occupied breeding areas and for productivity.

Service Action: Reclassify to threatened; the species will remain

threatened in the three States where it has had that status. The

recovery plan describes the delisting goals as initial and tentative.

The Northern States Bald Eagle Recovery Team has reconvened for the

purpose of reviewing and updating the plan, and currently is critically

reviewing the delisting goals.

Pacific Recovery Region

Reclassification Goals: Nesting populations continue to increase

annually for the five years beginning with the 1986 nesting season.

Delisting Goals: A minimum of 800 nesting pairs with an average

reproductive rate of 1.0 fledged young per pair with an average success

rate per occupied site of not less than 65% over a 5-year period.

Attainment of breeding population goals should be met in at least 80%

of management zones. Wintering populations should be stable or

increasing.

Progress to Date: In 1994, 1192 occupied territories were reported

with 1.03 young per occupied territory. The number of occupied

territories has consistently increased since 1986 and exceeded 800 for

5 years beginning in 1990 when 861 were reported. Productivity has

averaged about 1.03 since 1990. Nesting targets for 37 specified

management zones have been reached in 57 percent of the zones. In 1994,

21 of those zones had met or exceeded their recovery goals, and 5 other

zones in addition to the original 37 had nesting eagles that are not

part of the recovery goals for this region. Reclassification goals have

been met. Delisting goals have been met in all categories except

distribution in zones with nesting targets.

Service Action: Reclassify to threatened in California, Idaho,

Montana, Nevada, and Wyoming; the species will remain threatened in

Washington and Oregon.

Southeastern Recovery Region

Reclassification Goals: 600 occupied breeding areas distributed

over at least 75 percent of the historical range contingent upon

greater than 0.9 young per occupied nest, greater than 1.5 young per

successful nest, and at least 50 percent of the nests successful in

raising at least one young; based on a 3-year average and documentation

of population vigor and adequate support habitat. Individual State

goals are given.

Delisting Goals: Delisting may be considered if the recovery trend

continues for five years after reclassification goals are met. The

criteria for delisting will be developed when the species is

reclassified from endangered to threatened.

Progress to Date: 1099 occupied territories were reported with an

average of 1.27 young per occupied territory (based upon 1059

territories) in 1994. Nesting is distributed over all 11 Southeastern

States. The number of occupied territories reached 601 in 1991 and has

exceeded 600 for four successive years. Reproductive success for the

years 1990-1994 averaged 1.47 young per occupied territory. All

individual State goals have been met with Florida and South Carolina

doubling their original goals. Existing habitat is deemed to be

adequate to achieve and exceed overall recovery plan goals.

Reclassification goals have been met and delisting goals as stated may

be met next year.

Service Action: Reclassify to threatened.

Southwestern Recovery Region

Reclassification Goals: 10-12 young per year over a 5-year period;

population range has to expand to include one or more river drainages

in addition to the Salt and Verde Systems.

Delisting Goals: None given.

Progress to Date: 30 occupied breeding areas were reported for 1994

with 21 young produced. Some of the increase in the Southwestern Region

is due to finding previously unrecorded nest sites which may or may not

be new. Ten or more young have been produced every year since 1981.

Productivity has increased 10-20 percent through the assistance of the

Arizona Nest Watch program (Hunt et al. 1992).

Breeding has expanded beyond the Salt and Verde River systems.

Eagles are now nesting in the Gila, Bill Williams, and most recently,

the San Carlos river systems in Arizona, and the Rio Grande in New

Mexico. Thus, the reclassification criteria have been fully met.

Information received in response to the proposed rule indicates that

the bald eagles of central Arizona are not reproductively isolated, as

was previously believed. Commentors also pointed out that bald eagles

were likely never abundant in this arid land. Though many unique

threats persist, trends of this population segment appears stable or

increasing.

Service Action: Reclassify to Threatened

In summary, the Service is reclassifying the bald eagle from

endangered to threatened in the Chesapeake, Southeastern, and

Southwestern Recovery Regions and in those portions of the Northern

States and Pacific Recovery Regions where it is currently classified as

endangered. The Service is not delisting the bald eagle anywhere in the

lower 48 States at this time.

At this time the Service is deferring further action on listing the

bald eagles of northern Mexico as threatened or endangered. Provisions

included in the Emergency Supplemental Appropriations and Rescissions

for the Department of Defense to Preserve and Enhance Military

Readiness Act of 1995 (Publ. Law 104-6, 109 Stat 73; April 10, 1995)

preclude the listing of taxa as threatened or endangered species during

the remainder of fiscal year 1995. The bald eagles of northern Mexico

will retain their status as species proposed for listing as threatened

or endangered until the Service takes additional action.

Previous Federal Action

On February 7, 1990, the Service published an Advance Notice of a

Proposed Rule (55 FR 4209) to announce that consideration was being

given to the possible reclassification or delisting of the bald eagle

in all or part of its range in the lower 48 States. A summary of those

comments and Service responses to them were provided in the proposed

rule of July 12, 1994 (59 FR 35584).

On July 12, 1994, the Service published the proposed rule to

reclassify the bald eagle from endangered to threatened in most of the

lower 48 States (59 FR 35584). Comments were requested by October 11,

1994. Newspaper notices were published on or about July 18, 1994, in

papers of major cities or State capitals throughout the lower 48

States. Notification letters were sent to each State resource agency,

major Federal agencies, major public conservation organizations, and

all parties who submitted comments in response to the 1990 Notice.

Eight written requests were received for public hearings. Two public

hearings were held, and to accommodate them the comment period was

extended to November 9, 1994 (59 FR 49908, September 30, 1994).

On March 23, 1995, (60 FR 15280) the Service published the

announcement to reopen the comment period for 30 days due to the

existence of substantial additional information concerning the possible

inclusion of the Southwestern Bald Eagle Recovery Region in the

reclassification. The reopened comment period was announced by a news

release, and newspaper notices were published on or about March 24,

1995, in the Washington Post and major newspapers of the Southwest.

[[Page 36004]]

Notification letters were sent to all commentors on the proposed rule,

State resource agencies, major Federal agencies, and major public

conservation organizations. In addition, a public information meeting

was held on April 3, 1995, in Phoenix, Arizona.

Summaries of Public Hearings, Comments, and Recommendations

The first public hearing was held from 7:00 p.m. to 9:00 p.m. on

Tuesday, October 18, 1994, at the Somerset County Park Commission

Environmental Education Center, 190 Lord Stirling Road, Basking Ridge,

New Jersey. This hearing was held in response to requests from citizens

living in Delaware and Rhode Island. The location was deemed to be

centrally located for interested parties in both States. Notice of the

public hearing was announced in local and regional newspapers. Four

people attended this hearing and all provided comments. Major issues

discussed included contaminants, particularly those associated with

Delaware Bay, concern for low bald eagle breeding numbers in certain

areas, recovery region boundaries, and scientific take permits.

The second public hearing was held from 6:30 p.m. to 9:30 p.m. on

Tuesday, October 25, 1994, at St. Michael's Chapter House, Window Rock,

Arizona. The hearing was held in response to requests from the Navajo

Nation and representatives of Apache County, Arizona. Notice of the

public hearing was published in local and regional newspapers. Five

people attended this hearing and three people provided comments. Major

issues discussed included take permits, Southwestern Recovery Region

boundaries, and support for retaining the endangered status in the

Southwestern Recovery Region.

Comments on the proposed rule were received from 72 parties

including those attending the public hearings. Twenty-two State

resource agencies responded to the proposed rule, of which 14 supported

reclassification, three recommended the Southwestern Recovery Region be

reclassified to threatened, one recommended bald eagles in its State be

delisted, two did not object to reclassification but stated that they

would retain State endangered status, and one provided comments, but

gave no position.

Eighteen commentors represented organizations. Of these, ten stated

support for the proposal, four recommended against the proposed rule,

and two requested additional information.

Nineteen individuals provided comments, two of which provided

surveys covering 157 people. Most individuals recommended against

reclassification and several provided comments.

In response to the reopened comment period beginning March 23,

1995, the Service received 18 additional comments. Six State resource

agencies responded with five of them supporting reclassification of the

Southwestern Recovery Region and one requested delisting for a northern

State. Four Federal entities responded. Three did not object to the

reclassification, but two of those provided comments. One Federal

entity requested the bald eagles of Mexico be listed as endangered. Two

organizations opposed reclassification of the Southwestern bald eagles,

as did two individuals. A third individual expressed opposition to any

reduction of eagle protection. Three parties requested additional

information but provided no comments.

Written comments received during the comment periods and oral

statements presented at the public hearing are discussed in the

following summary. Comments of a similar nature are grouped into

general issues. These issues and the Service's response to each are

discussed below.

Issue 1: The bald eagles of the Southwestern Recovery Region should

be reclassified to threatened because recovery goals were met, genetic

evidence does not indicate this population segment to be unique, and

there is recent evidence of immigration.

Service Response: The Service has reviewed this issue, and due to

the new evidence of immigration, reopened the comment period to alert

the public to the new data and to reconsider whether or not this

population segment is distinct and if it should also be reclassified to

threatened. In considering the comments and information received, the

Service has determined the Southwestern Recovery Region to be part of

the same bald eagle population as that of the remaining lower 48

States. Therefore, the Service has included it in the reclassification.

In 1994, a new pair of nesting bald eagles was discovered in the White

Mountains at Luna Lake near Alpine, Arizona, bordering New Mexico. The

male of this pair was trapped, and its band revealed that it had

hatched in 1988 in southeastern Texas, south of Houston. This is the

first known bald eagle to breed within Arizona's boundaries that

originated in a different State and in a different recovery region

(Southeastern).

Mabie et al. (1994) provides additional evidence of inter-

population movements. Based on sight records, the authors believe that

bald eagles fledged in Texas may enter breeding populations throughout

the southern United States. Emigration of Texas-fledged eagles may also

extend into Mexico (Driscoll, et al. 1993).

Though Hunt et al. (1992) suggested that the central Arizona

population may be reproductively isolated, that publication also stated

that, ``neither enzyme electrophoresis nor DNA fingerprinting resolved

any specific genetic markers from which Arizona eagles could be

differentiated from those of other populations * * *.; Both techniques

showed higher levels of genetic heterozygosity in the Arizona samples

than the other populations tested * * *, [and] * * * these healthy

levels of variation imply that the Arizona eagles are not currently

experiencing inbreeding problems and may be capable of adapting to

future environmental change. This, together with the occupancy and

reproductive data, suggests that the population may be viable over the

long term * * *'' and that, in spite of the smaller size of the Arizona

eagles, ``We were unable to show a quality of uniqueness among the

Arizona eagles that implies the existence of adaptations to the desert

environment * * *''

Thus, based on new information on immigration and previously known

genetic data, the Service believes this population is not

reproductively isolated and should be included with the

reclassification of the lower 48 States population.

Issue 2: Delisting goals have been met or exceeded in many cases.

The bald eagle should be delisted in States where it has fully

recovered.

Response: In 1978, the Service recognized separate population

segments of this species primarily on the basis of State boundaries,

with bald eagles in five northern and Pacific States listed as

threatened, and those in the remainder of the lower 48 States listed as

endangered. The distinctiveness of these population segments is

questionable, given the dispersal capabilities of the species across

state lines. For the purposes of this rule, the Service recognizes only

one population in the lower 48 States, although the five recovery

regions remain valid for management purposes. Thus, delisting will only

be considered for the listed bald eagle population as a whole and not

on a State by State or recovery region basis. Delisting goals have only

been met for the Northern States Recovery Region and these goals were

developed and approved as ``tentative.'' Two recovery plans, those for

the

[[Page 36005]]

Southwestern and the Southeastern Recovery Regions, have not yet

established delisting goals. These three plans are currently being

updated and revised, with emphasis on developing biologically sound

delisting goals. Delisting goals for the remaining regions are very

close to being met.

Issue 3: The number of occupied territories in several States or

all the lower 48 States is too low to consider reclassification.

Response: Reclassification and delisting criteria were developed by

experts in bald eagle biology in all five recovery regions. The

reclassification criteria were met for all five recovery regions in the

lower 48 States. Each recovery plan included the number and

distribution of occupied territories and productivity as factors in

recovery and reclassification. The bald eagle has never been uniformly

distributed, and there is no biological reason to require a more even

distribution of the species as a precursor to reclassification. The

Service believes that, in the unlikely event of a catastrophe

decimating a State's bald eagle population, pioneering eagles from

other States would likely venture into the unoccupied habitats within a

short time.

Issue 4: The Service should not proceed with reclassification until

certain additional studies are conducted.

Service Response: The Endangered Species Act does not require that

the Service know the answers to all outstanding biological questions

before declaring the bald eagle to be recovering and worthy of

reclassification to threatened status. Reclassification is based on

criteria set forth in the recovery plans; those criteria are set at a

level which is believed to be sufficiently high so that relisting as

endangered will not be necessary in the foreseeable future. The plans

were developed by the Nation's bald eagle experts and approved by the

Service. Additional studies are not deemed necessary for

reclassification.

Issue 5: Contaminants continue to depress reproduction and the prey

base in many bald eagle nesting areas. Development continues to

encroach on bald eagle habitat. Low level military aircraft flights may

affect bald eagle reproduction. Many questions related to these factors

remain unanswered.

Response: Even States which are known to have localized areas of

contamination or development pressures have experienced increased

numbers of occupied territories in the past 10 years. Achieving the

reclassification criteria does not mean that all the threats are gone;

rather, it means that the species is doing much better than when it was

listed as endangered. The reclassification will not alter those

conservation measures already in force to protect the species and its

habitats. Since these pressures are expected to continue, all levels of

government and the public will need to continue to work toward

protection of important bald eagle habitat.

Issue 6: More bald eagles will be shot and killed if they are

reclassified to threatened status.

Response: Shooting bald eagles is illegal under the Endangered

Species Act regardless of whether they are classified as threatened or

endangered. Bald eagles are also protected from shooting by the Bald

and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

Issue 7: The bald eagles of the Channel Islands off California were

once part of the Southwest and Mexican population segment. They were

extirpated due to DDT exposure and have since been reintroduced.

Reproduction remains low due to lingering contaminants. These birds

should be classified as endangered.

Response: The Channel Island eagles are not a genetically unique

population segment as they have recently been reintroduced to that

area. The Service has also recognized the Southwestern population

segment as not being reproductively isolated and, having met the

reclassification criteria, is reclassified to threatened. Possible

inclusion of the bald eagles of the Channel Islands with the

Southwestern Recovery Region will be considered during the recovery

plan updating and revision.

Issue 8: Bald eagles in western States should not be reclassified

due to mortality from animal damage control methods.

Response: Animal damage control methods, such as M-44 sodium

cyanide devices and zinc phosphide, if used legally and according to

label instructions, pose low potential for poisoning bald eagles.

Illegal use of carbofuran and other highly toxic chemicals on bait for

predator control has resulted in a number of eagle mortalities. Such

actions are illegal now, and will remain illegal following

reclassification of the bald eagle. Western States and their respective

recovery regions have met reclassification goals in spite of these

localized mortalities.

Issue 9: The Service should prepare an environmental impact

statement under National Environmental Policy Act (NEPA) based on

increased permitted take that will result as land use changes occur on

public lands.

Service Response: Reclassification will not increase permitted take

of bald eagles due to land use changes occurring on public lands. Take

permits are only issued for activities that promote recovery goals or

for activities that incidentally take endangered or threatened species

during the course of otherwise legal activities. The Service is

required to consider NEPA compliance prior to deciding whether to issue

each take permit. Habitat protective mechanisms remain the same under

the Endangered Species Act whether a species is in the endangered or

threatened status. In addition, the take prohibitions of the Bald and

Golden Eagle Act and the Migratory Bird Treaty Act will remain in

effect following reclassification.

Issue 10: The most current scientific information should be used

for this reclassification based on the National Environmental Policy

Act requirements.

Service Response: The Endangered Species Act requires the use of

the best scientific and commercial data when making a determination to

list, delist, or reclassify a species. Annual bald eagle survey data

collected primarily by State and Federal biologists is compiled

nationwide each year by the Service. In addition, many university,

State, and Federal life history studies have been completed and others

are on-going. Furthermore, there have been two public comment periods

following the proposed reclassification notice, and one comment period

subsequent to the 1990 Advance Notice. These comment periods provided

opportunities for submission of additional data to the Service. The

Service considered all relevant data in regards to achieving recovery

plan goals, and believes the best available scientific data were used

in determining that reclassification is warranted for the bald eagle.

National Environmental Policy Act compliance is discussed at the end of

this document.

Issue 11: The bald eagle should not be rushed into reclassification

for political considerations, and it should be fully recovered before

reclassification occurs.

Service Response: The Endangered Species Act requires periodic

review of the status of listed species. The listing status should

accurately reflect the biological status. Fully recovered implies that

the species is no longer likely to become an endangered species and is

candidate for delisting. The Act does not require that a species be

fully recovered prior to reclassification to threatened status. Rather,

a species must no longer be in danger of extinction for it to be

reclassified from endangered to

[[Page 36006]]

threatened status. The Service used only biological information in

determining to reclassify the bald eagle; political considerations were

not a factor in the decision.

Issue 12: The Service acknowledges a high level of mortality due to

illegal use of pesticides, yet states that pesticides in recent times

have not impacted the bald eagle on a population level. How high is

this mortality?

Service Response: The Service, with this rule, recognizes only one

population of bald eagles in the lower 48 States and five recovery

areas. Although full recovery may be faster if the Service were able to

reduce all forms of mortality, the population and all management zones

clearly have experienced significant improvement since completion of

the recovery plans. The Service is using all available tools to

minimize mortality to bald eagles from legal and illegal use of

pesticides. Estimates of mortalities from illegal pesticide use cannot

accurately be made, as many cases remain unreported.

Issue 13: The remnant population of Baja California, Mexico, bald

eagles and possibly those of Sonora, Mexico, should be classified as

endangered.

Service Response: The recent moratorium on listing new species

prevents us from including the bald eagles of Mexico in this rule (PL

104-6, April 10, 1995). However, Mabie, et al. (1994) indicates the

possibility that bald eagles of Texas may be emigrating to Sonora and

other areas in the southwest. The numbers of nesting bald eagles in

Baja, though low, appear stable. Current information does not indicate

the bald eagles of Mexico are a distinct population, and thus may not

warrant a separate listing as endangered. Following removal of the

listing moratorium, all available data will be re-examined prior to

making a final determination on Mexican bald eagles.

Issue 14: Recently, several bald eagles have died in Arkansas and

Wisconsin from unknown causes.

Service Response: In the winter of 1994-95, 29 bald eagles died in

Arkansas and 9 died in Wisconsin from unknown causes. Infectious

disease has been ruled out as a likely cause. It is believed that the

Arkansas mortalities were caused by a toxic agent different from that

of Wisconsin. These mortalities are too few in number to impact

recovery. Although it is disturbing that the agents have not yet been

identified, the causes of these deaths do not appear to be common

diseases which might spread widely to other eagles.

Issue 15: The new information regarding the successful nesting at

Luna Lake, Arizona, which included a male from southeast Texas, does

not constitute definitive proof that genetic interaction occurs between

desert nesting bald eagle populations and wintering populations. The

Service should retain the endangered status for these southwestern bald

eagles.

Service Response: The significance of the Luna Lake nesting pair

was that the male was documented as originating in a different recovery

region, i.e. the Southeastern Recovery Region. This supported existing

genetic data indicating the southwestern birds are not experiencing

inbreeding problems. We are not aware of Arizona nesting birds

interbreeding with wintering birds, although it is possible that a

wintering bird might replace the lost mate of a pair. Though many

threats remain, the Southwestern eagles have far exceeded the criteria

for threatened status as outlined in the Southwestern Recovery Plan.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the bald eagle should be

classified as a threatened species throughout the lower 48 States.

Procedures found in section 4(a)(1) of the Endangered Species Act (16

U.S.C. 1531 et seq.) and regulations implementing the provisions of the

Act (50 CFR Part 424) were followed. A species may be determined to be

listed or reclassified as threatened or endangered due to one or more

of the five factors described in section 4(a)(1). These five factors

and their application to the bald eagle (Haliaeetus leucocephalus) are

as follows.

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range

The bald eagle is associated with aquatic ecosystems throughout

most of its range. Nesting almost never occurs farther than 3 km (2

miles) from water (Gerrard and Bortolotti 1988). Fish predominate in

the typical diet of eagles. Many other types of prey are also taken,

including waterfowl and small mammals, depending on location, time of

year, and population cycles of prey species. Dead animals or carrion,

especially in the wintering areas, are also taken when available

(Lincer et al. 1979).

Nest sites are usually in large trees along shorelines in

relatively remote areas. The trees must be sturdy and open to support a

nest that is often 2-3 m (6-9 ft) across and more than a meter (3 ft)

thick (Bent 1938). Bald eagles also select cliffs or rock outcrops for

nest sites where large trees are not available. This dependence upon

very large trees associated with water makes the eagle vulnerable to

water-associated development pressures.

One of the two major threats to the bald eagle at present and for

the foreseeable future is destruction and degradation of its habitat

(the other major threat is environmental contaminants--see Factor E

below). This occurs through direct cutting of trees for shoreline

development, human disturbance associated with recreational use of

shorelines and waterways, and contamination of waterways from point and

non-point sources of pollution.

Steps to reduce these threats are underway by all levels of

government and numerous private conservation organizations nationwide.

Increased protection of nesting habitat and winter roost sites has

occurred in many areas throughout the country. Guidelines to minimize

human disturbance around nesting and winter roost sites have been

developed in all parts of the country. Areas of contamination continue

to be identified and reduced. Rehabilitation, captive propagation,

reintroduction, and transplanting programs have all worked toward

increasing the viability of the U.S. bald eagle population.

Current threats to the bald eagle's habitat and range in the United

States by recovery region are as follows:

Chesapeake Bay Region--Buehler et al. (1991) reported that the bald

eagle feeding and resting use of Chesapeake Bay shoreline was directly

related to the distance of development from the shoreline. Eagles

tended to avoid shorelines with nearby pedestrian or boat traffic. With

human activity and development increasing, preferred bald eagle habitat

is diminishing. Associated land clearing reduces bald eagle nesting and

perching sites.

To offset these impacts, the Service has expanded its National

Wildlife Refuge System around the Chesapeake Bay area to protect bald

eagle habitat. For example, the Service acquired 3,500 acres of nesting

and roosting habitat in the James River area of Chesapeake Bay in 1991

to be protected and managed for bald eagles. Acquisition of an

additional 600 acres is planned. The Blackwater National Wildlife

Refuge, which provides important eagle habitat on Chesapeake Bay, is

also proposing to acquire more land. Nickerson (1989) estimates that

enough suitable unoccupied nesting habitat remains that, if unaltered,

it could sustain continued growth of the bald eagle population through

the remainder of the 20th century.

[[Page 36007]]

Northern States Recovery Region--Development, particularly near

urban areas, remains a primary threat. In spite of these localized

problems, bald eagle nesting activity in the Northern States Recovery

Region has more than doubled in the past 10 years from fewer than 700

to nearly 1,800 territories known to be occupied. There also is ample

unoccupied habitat still available throughout this region.

In the Great Plains States, loss of wintering habitat is a major

concern. Wintering areas have been lost through development of riparian

areas for recreational, agricultural, and urban uses. Loss of wintering

habitat also occurs due to lack of cottonwood regeneration. This

results from changes in floodplain hydrology from construction of

reservoirs and dam operations. Grazing also inhibits regeneration. A

threat to some wintering populations of eagles in the Great Plains

States is the destruction of prairie dog colonies and other important

foraging areas (U.S. Fish and Wildlife Service 1992).

However, management measures, reforestation, improved water

quality, and a reduction in pesticide contamination (see factor E

below) have enabled the Northern States bald eagle populations to

increase substantially overall. Where reservoirs may adversely affect

woody riparian growth, they have provided additional forage base for

eagles. Much eagle nesting and wintering habitat is on publicly owned

lands. Many of these lands are protected by habitat management plans

and strict eagle nest protection and management guidelines.

Pacific Recovery Region--Development-related habitat loss continues

to be a major factor limiting the abundance and distribution of the

species in the Pacific Recovery Region. Habitat conservation efforts,

including laws and management practices by Federal and State agencies

and efforts by private organizations, have helped to facilitate bald

eagle population increases in the Pacific Recovery Region since the

1960's. For example, interagency working teams in six of the seven

Pacific Recovery Region States have developed implementation plans to

address local issues more specifically than the recovery plan. Bald

eagle habitat guidelines have also been incorporated into development

covenants and land use. California and Washington have rules relating

to bald eagles on private lands to encourage landowners to maintain

nesting territory habitat.

Southeastern Recovery Region--The accelerated pace of development

activities within eagle habitat and the extensive area involved are the

most significant limiting factors in the Southeastern Region. The

cumulative effects of many water development projects impinge on the

ability to maintain current nesting populations and ultimately may

limit the extent to which recovery may occur.

To reduce these threats, habitat management guidelines are used to

minimize development disturbance in and around nests. Several counties

and municipalities have adopted the guidelines in their land use and

zoning policies. In addition, a significant amount of new habitat has

been created in the form of manmade reservoirs. Reservoirs primarily

provide wintering and non-nesting habitat, but are used by nesting

eagles as well (U.S. Fish and Wildlife Service 1989).

In addition, many of the States have, or have had, active

reintroduction programs. Rehabilitation and release of injured eagles

occurs throughout the Southeastern Region (U.S. Fish and Wildlife

Service 1989). As a result of these and other efforts, the bald eagle

nesting population in the Southeastern Region has more than doubled in

the past 10 years.

Southwestern Recovery Region--In addition to threats in common with

other recovery regions, such as human disturbance and availability of

adequate nesting and feeding habitat, the bald eagles of the

Southwestern Recovery Region, and nestlings in particular, are

subjected to heat stress, nest parasites, and entanglement in fishing

line debris from intense fishing pressure. Extensive monitoring through

the Arizona Bald Eagle Nestwatch Program has lessened the impact of

mortality factors by educating the public, protecting breeding areas,

and maximizing the number of fledglings produced. The protection,

education, and intervention that this program and current management

efforts provide help sustain this population segment.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

There is no legal commercial or recreational use of bald eagles.

The Service considers present legal and enforcement measures sufficient

to prevent bald eagle extinction or a need to reclassify as endangered.

The Service exercises very strict control over scientific, educational,

and Native American religious activities involving bald eagles or their

parts. With reclassification to threatened, the Service could issue

permits for limited exhibition and educational purposes, for selected

research work not directly related to the conservation of the species,

and for other special purposes consistent with the Act (50 CFR 17.32

and 17.41(a)). The Service does not believe that the issuance of these

additional permits would adversely impact the full recovery of the bald

eagle.

C. Disease or Predation

Predation is not a significant problem for bald eagle populations.

Incidents of mortality due to territory disputes between bald eagles

have been reported. Diseases such as avian cholera, avian pox,

aspergillosis, tuberculosis, and botulism may affect individual eagles,

but are not considered to be a significant threat to the population. In

the winter of 1994-95, 29 bald eagles died in Arkansas and 9 died in

Wisconsin. Infectious disease has been ruled out. Apparently the

Arkansas mortalities were caused by a toxic agent different from that

of Wisconsin. These mortalities, though significant, are too few in

number to impact recovery. In the Southwestern population, the Mexican

chicken bug, when abundant, is known to occasionally kill young.

According to the National Wildlife Health Research Center, National

Biological Survey, Wisconsin, only 2.7 percent of bald eagles submitted

to the Center between 1985 and 1990 died from infectious disease.

D. The Inadequacy of Existing Regulatory Mechanisms

The bald eagle is protected by the following Federal wildlife laws

in the U.S.:

* Sections 7 and 9 of the Endangered Species Act (16 U.S.C.

1531 et seq.) protect individual bald eagles (threatened or

endangered) and their active nests on public and private land.

* The Bald Eagle Protection Act (16 U.S.C. 668) prohibits

without specific authorization the possession, transport, or take of

any bald or golden eagle, their parts, nests, or eggs.

* The Migratory Bird Treaty Act (16 U.S.C. 703) prohibits

without specific authorization the possession, transport, or take of

any migratory bird (including bald eagles), their parts, nests, or

eggs.

* The Lacey Act (16 U.S.C. 3372 and 18 U.S.C. 42-44) among

other provisions, makes it unlawful to export, import, transport,

sell, receive, acquire, or purchase any bald eagle (1) taken or

possessed in violation of any law, treaty, or regulation of the

United States or in violation of any Indian tribal law or (2) to be

taken, sold, or transported in interstate or foreign commerce, in

violation of any law or regulation of any State or in violation of

any foreign law.

This species is afforded uncommonly comprehensive statutory and

regulatory

[[Page 36008]]

protection under Federal and State authorities. These protections will

remain in effect following reclassification to threatened status.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Contaminants may affect the survival as well as the reproductive

success and health of bald eagles. The abundance, and, potentially more

important, the quality of prey may be seriously affected by

environmental contamination. Although many of the compounds implicated

in reduced reproductive rates and direct mortality are no longer used,

contaminants continue to be a major problem in some areas. Pesticides

in recent times have not impacted the bald eagle on a population level;

however, individual poisonings still occur.

Carcasses baited with poison may attract bald eagles as well as

target animals such as coyotes. Poisonings may occur secondarily, when

predatory animals are poisoned and subsequently eaten by eagles. Crop

insecticides may be taken up by prey animals and may also result in

eagle mortality. In addition, organophosphates and carbamates are

sometimes used illegally as animal poisons. The National Wildlife

Health Research Center has diagnosed over 100 cases of pesticide

poisonings in bald eagles in the past 15 years.

Bald eagle deaths have been reported each year in the past decade

on western rangelands due, in part, to illegal use of pesticides such

as famphur, phorate, and carbofuran, and highly restricted chemicals,

such as strychnine, Compound 1080, and others (Tom Jackson, Fish and

Wildlife Service, Denver, pers. comm.). This mortality on western

rangelands corresponds with the primary wintering areas for most

western bald eagles (other than Pacific Coast birds). Some illegal uses

of pesticides are targeted at bald and golden eagles. Cases of

suspected intentional mortality through treating carcasses with

pesticides have occurred in most western States and may occur in other

States. The Service is using all available means to reduce these

incidents.

Long-term exposure to contaminants is a much more extensive problem

than is direct mortality. Lifetime exposure to contaminants may limit

an eagle's reproductive capabilities, alter their behavior and foraging

abilities, and increase their susceptibility to diseases or other

environmental stresses. Organochlorines, such as DDT, are no longer

legally used in the United States. Their presence in bald eagles is

generally a consequence of their long persistence in the environment.

Consequently, residues of such compounds from historical uses can still

contaminate prey animals and be passed to eagles. Exposure to these

compounds is also occurring at an early age. For example, approximately

90% of the eaglets sampled in Maine in 1992 had detectable levels of

DDE in their blood.

In the Chesapeake Bay Region, Delaware Bay and the James River

below Richmond continue to be a source of organochlorine and heavy

metal contaminants that may impact eagle reproduction (U.S. Fish and

Wildlife Service 1990). However, DDE concentrations in addled bald

eagle eggs in Chesapeake Bay have declined significantly during the

years between 1969 and 1984 (Wiemeyer et al. 1993).

In parts of the Northern States Region, contamination is depressing

bald eagle productivity. This occurs notably in the coastal areas of

Lakes Michigan and Huron, those rivers accessible by anadromous fishes

of those lakes, and in parts of Maine. Research on bald eagle

productivity in the vicinity of Lakes Michigan and Huron shorelines

indicates significantly lower productivity than for inland breeding

birds. The reduced productivity is correlated with concentrations of

PCB's and DDE in addled eggs (Bowerman et al. 1994). DDT rapidly

converts to DDE and is highly correlated with depressed productivity in

bald eagles (Garcelon 1994).

PCB's and DDE residue concentrations have markedly decreased for

Lake Superior bald eagle eggs in Wisconsin. Recent data indicate DDE

concentrations in eggs have declined from greater than 20 parts per

million in the 1970's to less than four parts per million in the 1990's

(Michael Meyer, Wisconsin Department of Natural Resources, pers.

comm.). This is significant because 4 parts per million is considered

the no effect concentration for DDE (Wiemeyer et al. 1993).

Bald eagles of the Pacific Recovery Region nesting on California's

Channel Islands, near the Columbia River estuary, and Hood Canal, which

is adjacent to Puget Sound, repeatedly have low reproductive success.

DDE and PCB's have had a deleterious effect on the reproduction of bald

eagles in the Columbia River estuary (Anthony et al. 1993). Residual

DDE continues to depress reproduction in the eagles of the Channel

Islands. Bald eagle eggs from Catalina Island had the highest reported

individual concentration (60 parts per million) of those analyzed

between 1968 and 1990, and highest average concentration (32.9 parts

per million) compared to that of any region or State (Garcelon 1994).

Wiemeyer et al. (1993) found addled bald eagle eggs collected from the

Klamath Basin and Cascade Lakes regions in Oregon ranked second (behind

Maine) in DDE concentrations among the fifteen States sampled. However,

concentrations of other contaminants in the Oregon eggs were low.

In spite of localized reproductive impairment, the Pacific Recovery

Region population has increased by about 68 percent in the past 10

years. Contaminants are not known to be a significant problem for

eagles in the Southwestern Recovery Region.

Lead poisoning has also contributed to bald eagle mortality. The

National Wildlife Health Research Center has diagnosed lead poisoning

in more than 225 bald eagles during the last 15 years. Lead can poison

bald eagles when they ingest prey items that contain lead shot or lead

fragments or where the prey has assimilated lead into its own tissues.

In winter, eagles may feed on waterfowl that are dead or dying from

lead poisoning or upon waterfowl crippled by lead shotgun pellets

during the hunting season. Lead poisoning of eagles was a primary

reason the Service required the nationwide use of non-toxic shot for

waterfowl hunting. The requirement for use of non-toxic shot was phased

in over a period of 5 years, and its use became mandatory for all

waterfowl hunting in 1991. Use of lead shot is still permitted in many

parts of Canada.

Of particular concern for bald eagles in the southeastern region

and in Maine are the toxic effects of mercury (Wiemeyer et al. 1993; C.

Facmire, U.S. Fish and Wildlife Service, Atlanta, pers. comm.). High

levels of mercury affect eagles with a variety of neurological problems

in which flight and other motor skills can be significantly altered and

reduce hatching rates of eggs. Mercury has entered the waterways as air

emissions from solid waste incineration sites and other point and non-

point sources. Impacts to bald eagles from mercury are currently under

investigation in the Southeastern Region.

Illegal shooting still poses threats to individual birds. Increased

law enforcement and public awareness have reduced shooting impacts from

being a cause of large scale mortality in the first half of this

century to being responsible only for the deaths of occasional

individuals at present. From 1985 to 1990, the National Wildlife Health

Research Center had diagnosed over 150 bald eagle deaths due to

gunshot. Hunter education courses routinely

[[Page 36009]]

include bald eagle identification material to educate hunters about

bald eagles and the protections that the species is afforded.

Electrocutions occur on power poles and lines that are not yet

configured for the protection of raptors. Much research has been done

in this area, and new poles and lines are usually configured to reduce

raptor electrocutions.

Human disturbance also remains a long-term threat. Significant

declines in eagle use of the Skagit River, Washington, were noted in

response to recreational activity (Stalmaster 1989). Human disturbance

can be harmful during egg incubation and brooding periods, because

disturbance can flush adults from nests and expose the eggs or young to

adverse weather conditions.

Land management practices can reduce or eliminate these disturbance

problems. Management of bald eagle nesting sites has progressed in some

areas to include zones of protection extending up to 2.5 miles (U.S.

Fish and Wildlife Service 1986). In the Bear Valley National Wildlife

Refuge, Oregon, for example, public access is restricted from November

1 through March 30 to prevent human disturbance to wintering bald

eagles.

Despite these various threats to the bald eagle, none are of

sufficient magnitude, individually or collectively, to place the

species at risk of extinction. Over most of the 48 States, the

population is doubling every 6 or 7 years.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this species in determining this rule. Based on

this evaluation, the preferred action is to reclassify the bald eagle

from endangered to threatened in the lower 48 States. The bald eagle

will remain threatened in the five States where it is currently listed

as threatened. The threatened status is appropriate because the bald

eagle is not in danger of extinction (i.e. endangered) throughout all

or a significant portion of its range.

Recognition of One Population in the Lower 48 States

In 1978, the Service recognized distinct population segments of

this species and delineated them on the basis of State boundaries, with

bald eagles in five northern States listed as threatened, and those in

the remainder of the lower 48 States listed as endangered. The

distinctiveness of these population segments is questionable, given the

dispersal capabilities of the species across State lines.

In the July 12, 1994, proposed rule, the southwest bald eagle

population was recognized as distinct from eagles elsewhere in the

lower 48 States based on evidence that it appeared to be reproductively

isolated. However, new evidence of immigration coupled with genetic

studies which were unable to demonstrate uniqueness in the Arizona

eagles leads us to conclude that the population segment is not

reproductively isolated. Thus, for purposes of this rule, the Service

recognizes only one population of bald eagles in the lower 48 States.

This population is now reclassified to threatened.

Special Rule

The Act allows special rules to be adopted for threatened species

as needed for the species' conservation; such special rules are

typically provided to reduce or augment those protections afforded to

threatened species under the Act. Section 17.41(a) is a special rule

adopted at the time of the 1978 reclassification of the bald eagle. The

original intent was to reduce the number of permits required for

researchers working on threatened eagles (i.e., Oregon, Washington,

Minnesota, Wisconsin, and Michigan) under both Sec. 17.32 and 50 CFR

parts 21 and 22 (bird banding and eagle permits). The present special

rule at Sec. 17.41(a) reads as follows:

(a) Bald eagles (Haliaeetus leucocephalus) found in Washington,

Oregon, Minnesota, Wisconsin, and Michigan.

(1) Applicable provisions. The provisions of Secs. 17.31 and

17.32 shall apply to bald eagles specified in paragraph (a) of this

section to the extent such provisions are consistent with the Bald

Eagle Act (16 U.S.C. 668-668d), the Migratory Bird Treaty Act (16

U.S.C. 703-711), and the regulations issued thereunder.

The Service now clarifies the language of this special rule for all

threatened bald eagles. Only a permit issued under the authority of 50

CFR 21.22 or 50 CFR part 22 (subpart C) is needed for such purposes as

banding (Sec. 21.22); scientific study or exhibition (Sec. 22.21),

which includes taking, possession, rehabilitation, and transport;

native American religious use (Sec. 22.22); and depredation reduction

(Sec. 22.23). A permit under Sec. 17.32 would only be required when a

permit under parts 21 and 22 do not provide for an otherwise lawful

activity. The issuance of all such permits would remain subject to

section 7 of the Act and part 402 of this title.

Effects of This Rule

As a result of the reclassification, prohibitions outlined under 50

CFR 17.41(a) would apply to all bald eagles of the lower 48 States. The

Service could issue permits for exhibition and educational purposes,

for selected research work (including banding and marking) not directly

related to the conservation of the species, and for other special

purposes. In allowing for a single permit, the Service seeks to foster

further research and other uses of bald eagles consistent with the Act

and the purposes of the Migratory Bird Treaty Act and the Bald Eagle

Act (50 CFR 17.32, 17.41(a), 21.22, 22.21-21.23).

Requirements of the Act under section 7 still apply to all Federal

agencies; there are no significant distinctions made in the Act or

supporting regulations (part 402) between endangered and threatened

species. The consultation and other requirements under section 7 apply

equally to species with either classification.

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, 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 of 1973, as amended. A notice outlining the Service's

reasons for this determination was published 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 Service offices listed in the Addresses section.

Author

The primary author of this notice is Jody Gustitus Millar, Bald

Eagle Recovery Coordinator, Fish and Wildlife Service, 4469-48th Avenue

Court, Rock Island, Illinois 61201 (309/793-5800).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations is amended as set forth below:

[[Page 36010]]

PART 17--[AMENDED]

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.

2. Section 17.11(h) is amended by removing the two entries for

``Eagle, bald'' under BIRDS and adding a new entry for ``Eagle, bald''

in its place to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate

--------------------------------- population

Historic range where Status When Critical Special

Common name Scientific name endangered or listed habitat rules

threatened

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

* * * * * *

*

Birds

* * * * * *

*

Eagle, bald.... Haliaeetus North America, U.S.A. T 1, 34, 580 NA 17.41(a)

leucocephalus. south into (conterminous

Mexico. 48 States).

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

3. Section 17.41(a) is revised to read as follows:

Sec. 17.41 Special rules--birds.

(a) Bald eagles (Haliaeetus leucocephalus) wherever listed as

threatened under Sec. 17.11(h).

(1) Applicable provisions. All prohibitions and measures of

Secs. 17.31 and 17.32 shall apply to any threatened bald eagle, except

that any permit issued under Sec. 21.22 or part 22 of this chapter

shall be deemed to satisfy all requirements of Secs. 17.31 and 17.32

for that authorized activity, and a second permit shall not be required

under Sec. 17.32. A permit is required under Sec. 17.32 for any

activity not covered by any permit issued under Sec. 21.22 or part 22

of this chapter.

(2) [Reserved]

* * * * *

Dated: June 6, 1995.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 95-16981 Filed 7-11-95; 8:45 am]

BILLING CODE 4310-55-P