# Eagle Permits; Take Necessary To Protect Interests in Particular Localities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE9-21589 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** September 11, 2009 - **Citation:** 74 FR 46836 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Parts 13 and 22 [FWS-R9-MB-2008-0057; 91200-1231-9BPP-L2] RIN 1018-AV81 Eagle Permits; Take Necessary To Protect Interests in Particular Localities AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: In conjunction with release of a final environmental assessment of this action, the U.S. Fish and Wildlife Service (“we” or “the Service”) is finalizing permit regulations to authorize limited take of bald eagles ( Haliaeetus leucocephalus ) and golden eagles ( Aquila chrysaetos ) under the Bald and Golden Eagle Protection Act (Eagle Act), where the take to be authorized is associated with otherwise lawful activities. These regulations also establish permit provisions for intentional take of eagle nests under particular, limited circumstances. DATES: This rule goes into effect on November 10, 2009. FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory Bird Management, via e-mail at eliza_savage@fws.gov; telephone: 703-358-2329; or U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mailstop 4107, Arlington, Virginia 22203-1610. SUPPLEMENTARY INFORMATION: Background These final regulations authorize the limited take of bald eagles and golden eagles under the Bald and Golden Eagle Protection Act (Eagle Act) (16 U.S.C. 668-668d), where the take to be authorized is associated with otherwise lawful activities. These regulations also establish permit provisions for intentional take of eagle nests where necessary to ensure public health and safety and in other limited circumstances. We proposed these regulations on June 5, 2007 (72 FR 31141) and provided a 90-day public comment period, which closed on September 4, 2007. The Service received approximately 21,500 comments, about 21,400 of which are essentially identical. Thirty-five respondents provided substantive input that was helpful in crafting final regulations. The 35 respondents consisted of: one Federal agency, three tribes, six State conservation agencies, four flyway committees (associations of State conservation agencies), one State department of transportation, five environmental non-governmental organizations (NGOs), four industry associations, three law firms/consultants on behalf of Florida development companies, two power companies, one Federal reclamation project, one airport, three rail transportation companies (commenting together), and three private citizens. We released a draft environmental assessment (DEA) of the action on August 14, 2008 (73 FR 47574) and re-opened the public comment period on the proposed rule with some revisions noted in the August 14 Federal Register notice. During that 30-day comment period, we received 58 comments from: one airport, three electric utilities, three Federal agencies, ten individuals (non-tribal), five industry associations, nine NGOs, one conglomeration of railroad companies, 13 State agencies, three flyway committees, one transportation association, three Native American tribal members one tribal Department of Natural Resources, three tribes, and two confederations of tribes. Based on public comment received on the June 5, 2007 proposed rule, new information compiled through the process of drafting the DEA, and public comment on the DEA and re-opened rule, we developed this final rule, the final environmental impact assessment (FEA), and a Finding of No Significant Impact. Along with a variety of small changes, this final rule contains the following significant additions and revisions from the June 5, 2007, proposed rule: • The rule was split into two rules to be finalized separately from one another. The original proposal to extend (or “grandfather”) Eagle Act take authorization to take previously authorized under the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq. ) has been separated from the remainder of the provisions in order to finalize the “grandfathering” provisions more expeditiously. Those provisions were published as a final rule on May 20, 2008 (73 FR 29075). • 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. In this final rule, we interpret the “preservation” standard to allow actions that are consistent with the goal of stable or increasing breeding populations. • The rule includes new issuance criteria to ensure that, except for safety emergencies, Native American religious needs are given first priority if requests for eagle take permits exceed take thresholds that are compatible with the preservation of the bald eagle or the golden eagle. • The rule no longer provides different issuance criteria for lethal versus non-lethal take. Rather, it contains separate provisions for programmatic take versus individual instances of take. • We amend the existing Eagle Depredation Permit regulations at 50 CFR 22.23 to extend permit tenure from 90 days to up to 5 years for purposes of hazing eagles. The purpose of these revisions is to enable issuance of permits that combine programmatic authorizations provided under § 22.23 and the regulations in this final rule. We are also taking the opportunity to revise terminology throughout § 22.23 to clarify that we can issue permits under that section to prevent or resolve safety emergencies as well as to protect agriculture and wildlife. • The rule expands (from the June 2007 proposed rule) the purposes for which eagle nests may be taken to include take necessary to ensure public health and safety. The proposed rule limited nest removal to emergencies where human or eagle safety was imminently threatened. • Nest take permits may be issued for projects that will provide a net benefit to eagles (including projects where the net benefit is the result of compensatory mitigation measures). • Permits may also be issued to take eagle nests built on human-engineered structures where the nest interferes with the intended use of the structure. • The rule redefines some terms and includes new definitions for a number of additional terms used in the regulations. The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) (Eagle Act) prohibits the take of bald eagles and golden eagles unless pursuant to regulations (and in the case of bald eagles, take can only be authorized under a permit). While the bald eagle was listed under the ESA, authorizations for incidental take of bald eagles were granted through the ESA's section 10 incidental take permits and ESA's section 7 incidental take statements, both of which were issued with assurances that the Service would exercise enforcement discretion in relation to violations of the Eagle Act and Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712). Upon delisting, all prohibitions contained in the ESA, such as those that prescribe the take of bald eagles, no longer apply. However, the potential for human activities to violate Federal law by taking eagles remains under the prohibitions of the Eagle Act and the MBTA. The Eagle Act defines the “take” of an eagle to include a broad range of actions: “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb.” “Disturb” is defined in regulations at 50 CFR 22.3 as: “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.” Many actions that are considered likely to incidentally take (harm or harass) eagles under the ESA will also disturb or otherwise take eagles under the Eagle Act. Until now, there was no regulatory mechanism in place under the Eagle Act to permit take of bald or golden eagles comparable to incidental take permits under the ESA. This rule adds a new section at 50 CFR 22.26 to authorize the issuance of permits to take bald eagles and golden eagles on a limited basis. The regulations are applicable to golden eagles as well as bald eagles. We will authorize take of bald or golden eagles only if we determine that the take (1) is compatible with the preservation of the bald eagle and the golden eagle and (2) cannot practicably be avoided. For purposes of these regulations, “compatible with the preservation of the bald eagle or the golden eagle” means “consistent with the goal of stable or increasing breeding populations.” Although the biologically-based take thresholds for permitting under these regulations will be based on regional populations (as explained below and in more detail in the FEA), we will also consider other factors, such as cultural significance, that may warrant protection of smaller and/or isolated populations within a region. We are adding a second new section at 50 CFR 22.27 to authorize the removal of bald eagle and golden eagle nests where (1) necessary to alleviate a safety hazard to people or eagles, (2) necessary to ensure public health and safety, (3) the nest prevents the use of a human-engineered structure, or (4) the activity, or mitigation for the activity, will provide a net benefit to eagles. We are also promulgating new definitions under the Eagle Act to clarify terms used in the permit regulations. Permit issuance under § 22.26 and § 22.27 will be governed by the permit provisions presently in 50 CFR parts 13 and 22, and new provisions we are finalizing as § 22.26 and § 22.27. In our June 5, 2007, proposed rule, we also proposed certain provisions to extend Eagle Act authorizations to persons previously granted authorization to take eagles under the ESA. We split the rulemaking into two separate rules and finalized the ESA-related provisions separately on May 20, 2008 (73 FR 29075). Most rules take effect 30 days after Federal Register publication; however, more time is needed to work out important details about how this program will be implemented. Therefore this rule has an effective date of 60 days after publication in the Federal Register . We are drafting implementation guidance, and will release it for public notice and comment before officially adopting it. Although the implementation guidance will not be finalized by the rule's effective date, the extra 30 days will help promote consistency in the initial permit administration, and we can begin issuing permits using the draft guidance. History On August 8, 2007, the bald eagle was removed from the List of Threatened and Endangered Wildlife (72 FR 37345, July 9, 2007). The final delisting rule also constituted our final decision that the Sonoran Desert population of bald eagles did not qualify as a distinct population segment (DPS), and was therefore not a listable entity under the ESA. Our finding on the status of the Sonoran Desert population was challenged in court. A March 5, 2008, ruling by the U.S. District Court for the District of Arizona ( Center for Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)) ruled in favor of the plaintiffs. As a result of the court order, we published two documents in the Federal Register . First, on May 1, 2008, we published a final rule reinstating ESA threatened status for bald eagles in the Sonoran Desert area of central Arizona (73 FR 23966). The final rule also included a map showing the geographic area where bald eagles are protected as a threatened species. Second, on May 20, 2008, we published a notice initiating a status review for bald eagles in the Sonoran Desert area of central Arizona (73 FR 29096). Once the status review is completed, we will issue a 12-month finding on whether listing these bald eagles as a DPS under the ESA is warranted, and if so, whether that DPS should be listed as threatened or endangered. We estimate the current number of breeding pairs in the 48 contiguous States to be over 9,700. Bald eagles were never listed as threatened or endangered in Alaska, where we currently estimate bald eagles to number between 50,000 and 70,000 birds, including approximately 15,000 breeding pairs. Bald eagles do not occur in Hawaii. Under sections 7(b)(4) and 10(a)(1)(B) of the ESA, we may authorize the incidental take of listed wildlife that occurs in the course of otherwise lawful activities. Thus, while the bald eagle was listed under the ESA in the lower 48 States (and where it is still listed, i.e., the Sonoran Desert area of central Arizona), two mechanisms were available to authorize take that was associated with, but not the purpose of, a human activity. Eagle take that was prohibited under the ESA is, in many instances, also prohibited under the Eagle Act. Now that the bald eagle is delisted (except for the Sonoran Desert population), a mechanism is needed to authorize take of bald eagles pursuant to the Eagle Act. The mechanism should also be available to authorize take of golden eagles, which were never listed as threatened or endangered under the ESA, as long as it is crafted with sufficient safeguards to ensure the preservation of both species. The Eagle Act provides that the Secretary of the Interior may authorize certain otherwise prohibited activities through promulgation of regulations. The Secretary is authorized to prescribe regulations permitting the “taking, possession, and transportation of [bald or golden eagles] . . . for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes, or . . . for the protection of wildlife or of agricultural or other interests in any particular locality,” provided such permits are “compatible with the preservation of the bald eagle or the golden eagle” (16 U.S.C. 668a). In accordance with this authority, the Secretary has previously promulgated Eagle Act permit regulations for scientific and exhibition purposes (50 CFR 22.21), for Indian religious purposes (50 CFR 22.22), to take depredating eagles (50 CFR 22.23), to possess golden eagles for falconry (50 CFR 22.24), and for the take of golden eagle nests that interfere with resource development or recovery operations (50 CFR 22.25). This rulemaking establishes permit regulations to authorize eagle take “for the protection of . . . other interests in any particular locality.” This statutory language accommodates a broad spectrum of public and private interests (such as utility infrastructure development and maintenance, road construction, operation of airports, commercial or residential construction, resource recovery, recreational use, etc.) that might “take” eagles as defined under the Eagle Act. In accordance with the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), we have prepared a final environmental assessment (FEA) of this action. You can obtain a copy of the FEA from http://www.fws.gov/migratorybirds/baldeagle.htm . Description of the Rulemaking Take Permit Regulations Under 50 CFR 22.26. We promulgate a new permit regulation under the authority of the Eagle Act for the limited take of bald eagles and golden eagles “for the protection of . . . other interests in any particular locality” where the take is compatible with the preservation of the bald eagle and the golden eagle, is associated with and not the purpose of an otherwise lawful activity, and cannot practicably be avoided. “Practicable” in this context means “capable of being done after taking into consideration, relative to the magnitude of the impacts to eagles (1) the cost of remedy compared to proponent resources; (2) existing technology; and (3) logistics in light of overall project purposes.” We anticipate that permits issued under this regulation will usually authorize take that occurs in the form of disturbance; however, in some limited cases, a permit may authorize lethal take that results from but is not the purpose of an otherwise lawful activity. Programmatic take (take that is recurring and not in a specific, identifiable timeframe and/or location) will be authorized only where it is unavoidable despite implementation of comprehensive measures developed in cooperation with the Service to reduce the take below current levels (see discussion below, under “Programmatic permits”). This type of authorization can be extended to industries, such as electric utilities or transportation industries, that currently take eagles in the course of otherwise lawful activities but who can work with the Service to develop and implement additional, exceptionally comprehensive measures to reduce take to the level where it is essentially unavoidable. A programmatic take permit could also be issued to State and Federal agencies that take eagles in the course of their activities (e.g., construction and maintenance of roads and other critical infrastructure) if they adopt such advanced conservation measures. Purposeful take will not be authorized under this permit. In rare cases where purposeful take may be necessary to avoid incidental take (such as relocating birds or a nest from a critical project area), it may be authorized under 50 CFR 22.23 (for purposeful take of eagles to protect agriculture, wildlife, and other interests), 50 CFR 22.25 (take of golden eagle nests for resource development and recovery operations), or new 50 CFR 22.27 (take of nests for health and safety). The latter regulation is finalized as part of this rulemaking. Where appropriate, the Service will issue a single permit that combines authorizations provided under the various regulations. For example, an airport that meets the obligations of its Wildlife Hazard Management Plan and adopts measures developed in cooperation with the Service to minimize the potential for take of eagles, could be issued a programmatic permit under these regulations (§ 22.26) that would be valid for up to 5 years to authorize eagle take that occurs as the result of unavoidable collisions between eagles and planes. One of the stipulations of the permit would likely be the requirement to haze eagles in the vicinity of airports, which in some cases could constitute disturbance (for example, to prevent eagles from re-nesting at a hazardous location). Because this hazing is intentional and the effects on the eagles purposeful, it does not meet the issuance criteria for the § 22.26 permit, which requires the taking to be associated with, but not the purpose of, the activity. Therefore, we would issue the permit with the combined authority of both § 22.26 and § 22.23. However, the regulations at § 22.23 had previously limited permit tenure to 90 days because the need for programmatic authorization was not contemplated at the time that regulation was developed. In order to have the ability to extend this type of authorization to “Advanced Conservation” programmatic permittees, we are amending the regulations at § 22.23 to allow permits to also be valid for up to five years. We are also taking the opportunity to make additional minor revisions throughout § 22.23 to clarify that we may issue permits under that section to alleviate safety emergencies, and not just to protect agriculture, wildlife or other interests from depredating eagles. Hazing eagles at airports has been the primary purpose for which we have exercised this option, but there may be other scenarios where eagles are not depredating on any resource or private property, but their presence poses a danger to themselves or to people (e.g. at uncovered landfills where eagles may ingest toxic substances). Other than these clarifying revisions, including to the section title, and amending the permit tenure, we are not making any substantive revisions to the regulations at § 22.23 in this rulemaking. Population Assessment and Take Thresholds . Permit issuance will be conditioned on various criteria, the most important of which is that the permitted take is compatible with the preservation of the bald eagle and the golden eagle. The statutory requirement that the authorized activities be compatible with the preservation of bald eagles and golden eagles ensures the continued protection of the species while allowing some impacts to individual eagles. For purposes of these regulations, “compatible with the preservation of the bald eagle and golden eagle” means “consistent with the goal of stable or increasing breeding populations.” In our June 5, 2007, proposed rule, we proposed to use 0.54% as the threshold rate of decline, which is the rate of decline used by Partners in Flight (PIF) as one of the factors for designating an avian species to their Continental Watch List. However, steady declines, even as small as 0.54% annually, would cumulatively result in an unacceptably large decrease in eagle populations over time. For this and other reasons (see Responses to Public Comments), we agree that the original proposed management scenario was not sufficiently conservative and will instead adopt as our management goal increasing or stable breeding populations. In the DEA and notice re-opening of the comment period on the rule (73 FR 47574, August 14, 2008), to elucidate the statutory standard of “preservation of the bald eagle or the golden eagle,” we proposed the following terminology: “maintaining increasing or stable populations.” We continue to support the essential meaning of that standard, but recognized that it could be misapplied to constrain any authorization of take because any take of a bald or golden eagle by some degree results in a population decrease, even if short-term and inconsequential for the long-term preservation of the species. Thus, if interpreted so narrowly, the word “maintaining” would render us unable to authorize any take. Therefore, we are revising our interpretation of “preservation of the eagle” to read “consistent with the goal of stable or increasing breeding populations.” The phrase “consistent with the goal of” will allow take that is compatible with long-term stability or growth of eagle populations. Adding the word “breeding” clarifies the significance of the number of breeding pairs for maintaining or growing populations, versus floaters (non-breeding adults). For more discussion on the biological basis for distinguishing between breeding eagles and floaters, see the FEA. To establish management populations for bald eagles, we used natal populations (eagles within the median natal dispersal range of each other, estimated at 43 miles) in our evaluation in order to look at distribution across the landscape. Being able to see where natal populations appear sparser, rather than concentrated, allows us to determine natural boundaries between regional eagle populations, reducing the risk that we would issue take permits in any one regional management area in a manner that is disproportionate to the population in the area. We acknowledge that this approach is somewhat subjective, and that the regional management populations delineated are not, in most cases, genetically or even demographically isolated. However, we believe the approach does serve to identify biologically-based, regional populations at a scale meaningful for eagle conservation. The Service's goal in managing bald eagles at this scale is to ensure permitted take does not negatively affect the species' status in any regional management population. Because the management populations delineated by this approach roughly correspond to the Service's organizational structure made up of eight Service Regional Offices, we will manage bald eagles based on populations within the eight Service Regions, with some shared populations. Permits will be administered by Service Regions in coordination with each other, especially where a management area lies in more than one Service Region. We plan to evaluate this management and administrative approach regularly, at least once every five years. For golden eagles, available data on distribution are not as spatially precise as data for bald eagles. We will manage take of golden eagles according to thresholds set at the Bird Conservation Region (BCR) level because the only range-wide estimates available for golden eagles are BCR-scale population estimates. BCRs are ecologically distinct regions in North America with similar bird communities, habitats, and resource management issues. Developed by a mapping team at the first international meeting of the North American Bird Conservation Initiative (NABCI) in 1998, BCRs are an application of the framework of nested ecological units delineated by the Commission for Environmental Cooperation (CEC). Because Service Regions are not administered according to BCR boundaries, we will administer permits by Service Regional Permit offices. Service Regions would coordinate closely when issuing permits to ensure that the threshold for that BCR is not exceeded. Unfortunately, there is little reliable recent data for breeding golden eagles. Many States have not had the resources to conduct monitoring of golden eagle populations, in some cases for up to 20 or more years. However, we will base thresholds on existing data and modeling until better data become available. As discussed further below and in greater detail in the FEA, the best available data we have for golden eagles indicate modest declines in the four BCRs that constitute 80 percent of its range in the lower 48 states. As a result, until we have additional data to show that populations can withstand additional take, we are deferring implementation of the new permit types for golden eagles, except for safety emergencies and programmatic permits. We will continue to issue historically-authorized take permits under existing permit types at the level of take carried out under those permits (average over 2002-2007). We will use modeling to evaluate the level of take we can permit that is compatible with this statutory threshold, taking into consideration the cumulative effects of all permitted take, including other forms of lethal take permitted under this section and other causes of mortality and nest loss. Due to the inherent limits of monitoring to detect precise fluctuations in bald eagle and golden eagle numbers, coupled with the uncertainty as to whether individual actions being permitted will in fact result in a “take,” we cannot precisely correlate each individual permit decision with a specific population impact. However, we will periodically re-calibrate regional take thresholds, using the best available data, including reporting data from permittees, data from post-delisting monitoring (for bald eagles), WEST surveys (for golden eagles), the Breeding Bird Survey, and fall and winter migration counts to assess the status of eagle populations and adjust permitting thresholds on an ongoing basis as appropriate. In our June 5, 2007, proposed rule, we stated that our preliminary analysis indicated that demand for permits under these regulations, and the effects of issuing those permits, including mitigation measures, would not be significant enough to cause a decline in eagle populations from current levels. (We recognized that take of bald eagles in the Southwest would need to be extremely limited, if permitted at all.) However, further analysis indicates that there are additional populations where a relatively modest level of demand for take permits could exceed the level of take that would be compatible with maintaining current population levels, particularly for golden eagles. A 2006 survey (Good and others, 2007) showed decreasing golden eagle populations in two BCRs. A draft report of 2007 surveys in the same areas (BCRs 9, 10, 16, and 17, hereinafter WEST areas) found decreasing golden eagle populations in two BCRs, one of which was the same as the previous report (Good and others, 2008). Kirk and Hyslop (1998) indicated that golden eagle populations may be declining in some areas of Canada. Good and others (2004) estimated that there were just over 27,000 golden eagles in the 4 BCRs in which the species is of conservation concern. These BCRs encompass much of the western U.S. population and most of the North American population of this species. Breeding bird surveys and migration counts are inconclusive but suggest lowered reproduction rates in the western United States, possibly due to habitat alteration and loss, with concomitant declines in prey (Kochert and others, 2002). A preliminary report on the 2008 surveys in the WEST areas showed population declines in all four BCRs covered in the survey, an area which is believed to contain approximately 80% of the golden eagle population in the lower 48 states. These new permits represent a somewhat different approach to eagle management and have significant policy implications and uncertainties. Those uncertainties and stochasticity (natural variability in vital rates affecting population trends) for both species support a more conservative approach than we proposed in our DEA, which proposed capping threshold at ½ maximum sustainable yield (MSY). The MSY is the greatest harvest rate over an indefinite period that does not produce a decline in the number of breeding adults in the population. For a number of reasons (outlined in the following discussion) we intend to initially cap permitted take of bald eagles at 5% estimated annual productivity. This approach is consistent with the recommendations made by Millsap and Allen (2006) for permitting take of various raptor species for falconry purposes. For golden eagles west of 100 degrees West longitude, including in Alaska, we will initially implement this rule only insofar as issuing take permits based on levels of historically authorized take, safety emergencies, and take permits designed to reduce ongoing mortalities and/or disturbance. Future projects seeking programmatic permits would need to minimize their own take of golden eagles to the point that it is unavoidable and also reduce take from another source to completely offset any new take from the new activity. Estimates of golden eagle population size in Alaska are coarse, based upon even fewer data sources than in the lower 48 states, and juvenile survival may be significantly lower, so management would therefore need to be conservative. In addition, McIntyre et al . (2008) suggested that conservation strategies for migratory golden eagles require a continental approach. For golden eagles east of 100 degrees West longitude, we will not issue any take permits unless necessary to alleviate an immediate safety emergency. We do not have enough data on rates of golden eagle mortality in the eastern U.S. to issue programmatic take permits. Our modeling showed there would be negative effects to the floater portion of the bald eagle population (using population trend data from Florida) at ½ MSY and even some minor effects with setting take at 5% of estimated annual productivity. Floaters, for which monitoring is rarely conducted, serve to buffer populations from decline in times when productivity does not offset mortality, and also serve to provide a buffer for unforeseen effects to populations. Importantly, the models did not factor in the cumulative impacts that were discussed in the DEA. Furthermore, the lack of annual monitoring to ensure we are not having a negative effect on populations, particularly when the thresholds we are establishing would be in effect for five years, compels us to adopt the more conservative approach. Some commenters, including eagle experts in various parts of the U.S. believe the DEA's population numbers and survival rates for bald eagles may have been too high for some areas of the country. Additionally, the caps recommended in Millsap and Allen were in the context of falconry, where removal of birds from the population has no associated impacts to habitat, whereas many permits issued under both these new regulations will have long-term or permanent habitat-related impacts in addition to the removal of an individual from the population. Therefore, we believe that caps should be no less conservative than recommended for falconry take. The lower take thresholds also reflect the cultural significance of both species. Cultural significance is not limited to Native American religious purposes, but encompasses a broad cultural regard for both species. Although collected by some Native American tribes for ceremonial purposes, the overall cultural value placed on bald eagles and golden eagles is generally quite distinct from the value of harvesting them. This fact warrants a different, significantly more conservative approach than for managing game bird populations wherein allowable take approaches MSY. We intend, through a structured coordination process with States and tribes, to develop monitoring and research adequate to both resolve current uncertainties in the data and to provide enhanced ability to detect the effects of the permit program. If, after implementation for a time period commensurate with the normal population cycles of the eagle, data then indicate take thresholds can be increased in certain regions, we will increase thresholds accordingly to allow more take. One factor that should allow us to increase take thresholds in some regions for both species is the implementation of advanced conservation measures through programmatic permits to reduce ongoing take that is currently unauthorized. (See our discussion below under “Programmatic Permits.”) For more detailed discussion of population modeling and permitting thresholds, please see our final environmental assessment of this action, available on our website at http://www.fws.gov/migratorybirds/baldeagle.htm . To address the possibility that demand exceeds our scientifically-based take thresholds, the final regulation contains permit issuance criteria to ensure that requests by Native Americans to take eagles from the wild—where the take of live, wild eagles is absolutely necessary to meet the religious purposes of the tribe, as opposed to the use of feathers and parts that may be obtained from the National Eagle Repository—are given first priority over all other take, except as necessary to alleviate safety emergencies. (Permit regulations governing take and possession of eagles by Native Americans are set forth in 50 CFR 22.22) The American Indian Religious Freedom Act (42 U.S.C. 1996), sets forth Federal policy to protect and preserve the inherent right of American Indians to express and exercise their traditional religions, including but not limited to, access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. If emergency and Native American religious needs can be met, the issuance criteria further provide that programmatic permit renewals are given third priority. Projects to promote and maintain public health and safety have fourth priority. For golden eagle nest take permits, resource development and recovery operations have fifth priority. Assuming those interests can be met, bald eagle take for other interests may be permitted as long as total take authorizations do not surpass 5% estimated annual productivity for the regional bald eagle population. Initially, until we have data to show that golden eagles can withstand additional take, we will issue permits at historically-authorized take levels under existing permits, for emergency take, and for programmatic take (west of 100 degrees West longitude). If, in the future, data and modeling suggest golden eagle populations can support additional take, we would, in accordance with the prioritization criteria, begin to authorize golden eagle take at up to 1% of annual productivity, unless information available at that time demonstrates that higher levels of take can be supported (following Millsap and Allen 2006). The Service's Regional Directors each will be responsible for developing a structured allocation process consistent with the rule's prioritization criteria to be implemented in each Service Region if there is evidence that demand for take will exceed take thresholds for either species of eagle. Because we need, at least initially, to limit take permits for golden eagles to historically-authorized take levels, we will use the prioritization issuance criteria from this rule to guide permit decisions with regard to allocating all golden eagle take permits. For example, in Service Region 2, the Service has issued permits to take 28 golden eagles per year on average from 2002 - 2007 under the various permit types that allow take (e.g., scientific collecting, depredation, Native American religious purposes, etc.). On average, 23 of the golden eagles were taken for Native American religious purposes. If next year, the demand from qualified Native Americans increases to 28, we will issue all the available take permits (28) to Native Americans—unless there is a need to take eagles to alleviate a safety emergency (to protect either eagles or people from physical harm or death), in accordance with the prioritization order. A wide variety of activities, including various types of development, resource extraction, and recreational activities near sensitive areas such as nesting, feeding, and roosting sites, can disrupt or interfere with the behavioral patterns of bald eagles. We developed National Bald Eagle Management Guidelines (NBEMG or Guidelines) as a tool for landowners, project proponents, and the general public engaged in activities in the vicinity of bald eagles. The NBEMG are available at http://www.fws.gov/migratorybirds.baldeagle.htm . The NBEMG address potential negative effects of human activities on bald eagles, based on observed bald eagle behavior, and provide guidance on what types of activities are likely to cause bald eagle disturbance at varying distances to nests, communal roosts, and foraging areas, and how to avoid such disturbance. We intend to use the Draft U.S. Fish and Wildlife Service Raptor Conservation Measures (soon to be released for public notice and comment) as interim guidance for golden eagle disturbance, until species-specific guidance can be developed. When referring to both the NBEMG and the U.S. Fish and Wildlife Raptor Conservation Measures in this rulemaking document, we refer to both documents together as “guidelines” with a lower case “g.” By adhering to the guidelines, landowners and project proponents should be able to avoid eagle disturbance most of the time. If avoiding disturbance is not practicable, the project proponent may apply for a take permit. A permit is not required to conduct any particular activity, but is necessary to avoid potential liability for take caused by the activity. Disturbance may also result from human activity that occurs after the initial activities (e.g., residential occupancy or the use of commercial buildings, roads, piers, and boat-launching ramps). In general, we do not intend to issue permits for routine activities such as hiking, driving, normal residential activities, and ongoing use of existing facilities, where take could occur but is unlikely. New uses or uses of significantly greater scope or intensity may raise the likelihood that eagles will be disturbed, and as such could require authorization for take under these regulations. To assess whether the Service's predictions regarding the likelihood of disturbance are generally sound, and thereby ensure that permit requirements are not unnecessarily burdensome to the public and are adequately protecting eagles, we will require permittees to provide basic post-activity monitoring (described below) by determining whether the nest site, communal roost, or important foraging area continues to be used by eagles for up to three years following completion of the activity for which the permit was issued, depending on the form and magnitude of the anticipated take and the objectives of the associated conservation measures. Where an activity is covered by a management plan that establishes monitoring protocols (e.g., an airport Wildlife Hazard Management Plan), the permit may specify that monitoring shall be conducted according to the pre-existing management plan. We will use reporting data, as well as supplemental data we collect from some permittees' project areas, to ascertain how the activity actually affected the eagles in the area. With this information, we may be able to adjust take thresholds if take does not occur. The report data also will help us to assess how likely it is that future activities will result in loss of one or more eagles, a decrease in productivity of bald or golden eagles, and/or the permanent abandonment or loss of a nest site, communal roost site, or important foraging area. The outcome of disturbance permits, recorded in this way, may allow us to recalibrate the number of annual permits available in a Service Region, and to refine recommendations in future versions of the guidelines regarding buffer distances, timing of activities, and other practices that minimize take of eagles. Although the information we will ask permittees to provide is relatively basic—whether eagles are observed at the nest, roost site or foraging area—we realize that reporting will not always be accurate. In addition to errors, some permittees may (unjustifiably) be concerned about law enforcement and may under-report take without fully understanding that the take has been authorized by their permits and thus is not a violation of the law. Overall, however, we expect most permittees will make a good-faith effort to honestly report eagle use of the area, resulting in a substantial body of useful information we do not otherwise have the resources to collect. Along with annual report data, we will periodically assess overall population trends of both species of eagles, taking into consideration the cumulative effects of other activities that take eagles and eagle mortalities due to other factors. Based on the modeling we will use to set take thresholds, we do not expect population declines as the result of the authorizations granted through these regulations. However, it is also possible that external factors could arise that negatively affect eagle populations. Whatever the cause, in order to ensure that take is compatible with the preservation of the bald or golden eagle, we will not issue permits for take within a regional eagle population without sufficient data indicating the take will not result in a population decline. Programmatic permits . The June 2007 proposed rule distinguished between lethal and non-lethal take (e.g., disturbance), and proposed that lethal take would be authorized only if it was unavoidable even when Best Management Practices (BMPs) were followed. We revised this concept to remove the distinction between lethal and non-lethal take, and replace it with a distinction between individual or “one-time” 1 take versus programmatic take. A programmatic permit will be available to industries or agencies undertaking activities that may disturb or otherwise take eagles on an on-going operational basis. We are defining “programmatic take” as “take that (1) is recurring, but not caused solely by indirect effects, and (2) occurs over the long term and/or in a location or locations that cannot be specifically identified.” The second criterion is the one that distinguishes programmatic take from any other take that has indirect effects that continue to cause take after the initial action. It is the key factor that makes programmatic take programmatic. 1 By describing the standard (non-programmatic) permit as authorizing “individual” or “one-time” take, we do not mean to infer that only one eagle can be taken under a standard permit, or that if more than one eagle is taken, the take must occur simultaneously. We use the term, “one-time” for lack of a better word to refer to take is quantifiable and of a specified amount. We define “programmatic permit” as “a permit that authorizes programmatic take. A programmatic permit can cover other take in addition to programmatic take.” We can issue programmatic permits for disturbance as well as take resulting in mortalities, based on implementation of “advanced conservation practices” developed in coordination with the Service. “Advanced conservation practices” (ACPs) refers to scientifically-supportable measures that are approved by the Service and represent the best-available techniques to reduce eagle disturbance and/or ongoing mortalities to a level where remaining take is unavoidable. The Federal Highway Administration is an example of an agency for which this streamlined approach may benefit the agency and eagles. A programmatic take permit may be appropriate for industries such as the energy and transportation providers, among others, if they elect to work with the Service to develop ACPs. The ACPs and plan specifications will then become permit conditions, along with monitoring and reporting requirements more comprehensive than those for individual take permits. Programmatic permits are designed to provide a net benefit to eagles by reducing ongoing unauthorized take. Accordingly, programmatic permit conditions will be designed to provide ongoing long-term benefits to eagles. Recipients of programmatic permits must perform more rigorous monitoring than is required for standard, individual take permits. Because the requirements for obtaining programmatic take authorization are designed to reduce take, the take authorized by programmatic permits for ongoing activities will not be subtracted from regional thresholds, nor would they be subject to the prioritization criteria. The reductions in take that result from implementation of new measures to reduce take from ongoing activities under programmatic permits may allow the Service to increase take thresholds and make additional permits available for other activities likely to result in take. Applicants for programmatic permits for new activities will be subject to the same rigorous standards and may also be required to apply conservation measures at other sites (possibly owned or operated by a third party) where eagles are taken by existing operations. The purpose of the off-site measures would be to reduce take to a level that offsets some or all of the new take from the applicant's activity. The degree to which the applicant would be required to offset the take will depend on the status of eagle populations in the region; if populations of the particular eagle species are robust, the Service may not require any off-site reductions in take. However, if regional populations cannot absorb significant new take, the Service may require the project proponent to completely offset the effects of the new activity with reductions in take elsewhere. To encourage potential applicants to seek programmatic permits (versus standard permits), the regulations contain issuance criteria that give priority to those seeking renewal of programmatic permits. These criteria will provide programmatic permittees with some assurance (though never an absolute guarantee) that previously authorized levels of take from on-going operations will continue to be authorized in the future. Programmatic permit renewals will have third priority, after (1) safety emergencies, and (2) take necessary to meet Native American religious needs, but before (4) non-emergency public health and safety. A programmatic permit is optional. Entities that engage in programmatic take and who wish to obtain authorization for the take can choose whether to apply for the programmatic take permit or apply for standard permits for individual takes. One advantage of opting for the programmatic permit is it would remove liability comprehensively. It also lessens concern about whether additional take can be authorized under take thresholds in the future. The disadvantage is that the process of working with the Service to develop the permit conditions is likely to be time-consuming and more expensive than seeking a standard permit. Also, implementation of the ACPs will in most cases require substantial resources. In the long term, however, depending on the scale of an applicant's operations, programmatic permits should be the most economical approach for authorizing long-term or wide-ranging take of eagles. A programmatic permit is not available where the only long-term take is due to indirect effects from an initial action. Programmatic take is the direct result of ongoing operations. The following are e xamples of programmatic take: 1. A railroad that routinely strikes eagles feeding on carcasses on the tracks. 2. Utilities that kill eagles through collisions and electrocutions from contact with power lines. 3. Ongoing disturbance at a port due to vessel traffic and/or other port operations. 4. Construction and maintenance of highways throughout a State or other jurisdiction that routinely disturbs eagles. 5. Airports that periodically (but immediately upon discovery) need to remove eagle nests to protect human and eagle safety. Below are examples of what is not programmatic take: 1. Construction of a boat ramp, with or without long-term indirect effects that take eagles (boat traffic). 2. Construction of a port when eagles are disturbed by pile driving and other construction activities. 3. Construction of a single highway, or multiple highways, where eagle take can be projected to occur at particular locations and during specific project phases. Although we define “programmatic take” as take that results from an activity and not from the activity's indirect effects, many activities that result in programmatic take will also have adverse indirect effects on eagles. Therefore, most programmatic permits will authorize other take in addition to the programmatic take, to cover the indirect effects. The Service will consider indirect effects of activities under both types of permits, first when deciding whether to issue the permit, and again when establishing conservation measures. Because programmatic permits are designed to reduce take to the level where it is unavoidable, if there are ACPs that will reduce take caused by indirect effects, those ACPS will be required conditions of the programmatic permit. As further illustration of the differences between programmatic and standard permits, and the need to consider indirect effects under both, the following are two distinct activities that each directly take eagles and also have indirect effects that continue to take eagles; however, only one programmatically takes eagles and can be covered with a programmatic take permit. First, a large housing development provides buffers around each nest on the property as recommended by the Service to avoid disturbing eagles. However, due to various constraints, the developer is unable to avoid impacts to the eagles' prey base, resulting in take of eagles in the form of lost productivity or abandonment of nesting territories. In this case, the construction of the development is not ongoing. What continues are the indirect effects of depriving eagles of their prey base. Therefore, the take caused by the housing development is not programmatic take, and to be authorized, would have to be covered under a standard permit. Our second example is a company interested in siting a wind-power facility. We are currently unaware of any measures that would eliminate eagle mortalities when turbines are sited in golden eagle habitat (including migration corridors). If ACPs can be developed to significantly reduce the take, the operator may qualify for a programmatic take permit, since the ongoing mortalities are the direct result of the operation of the turbines. In addition to measures designed to reduce take directly, ACPs should also include measures to reduce indirect effects that contribute to the level of take, such as ensuring the project site does not provide enhanced habitat for small mammals that eagles feed on, which would attract eagles to the area and increase the likelihood of collision with turbines. Permit application process . Permits are available to Federal, State, municipal, or tribal governments; corporations and businesses; associations; and private individuals, all of which are subject to the prohibitions of the Eagle Act. Persons and organizations that obtain licenses, permits, grants, or other such services from government agencies are responsible for their own compliance with the Eagle Act and should individually seek permits for their actions that may take eagles. Government agencies must obtain permits for take that would result from agency actions that are implemented by the agency itself (including staff and contractors responsible for carrying out those actions on behalf of the agency). The final regulations do not specify what information an applicant must submit to apply for an eagle take permit or to file an annual report, other than that he or she must submit a complete application form, including any required attachments to apply for a permit, and for annual reporting, the permittee must submit all the information required on the report form. By avoiding codification of application and reporting requirements, we can revise application and reporting requirements without undergoing the time-consuming rulemaking process. However, the public will have the opportunity to provide input on the content of these forms. All forms must be approved by the President's Office of Management and Budget (OMB) every three years, and as part of that process, all new forms and all changes to forms are subject to public review via a series of notices in the Federal Register . The forms we will use when this rule takes effect were subject to the OMB and public review process while this rule was being developed. The new Service permit application Form 3-200-71 requires the following information from the applicant as part of the application process (in addition to the requirements of § 13.12(a) of this subchapter, which apply to all types of permits issued by the Service): 1. A detailed description of the activity that will cause the disturbance or other take of eagles; 2. The species and number of eagles that will be taken and the likely form of that take; 3. Maps and digital photographs that depict the locations of the proposed activity, including the area where eagles are likely to be taken; 4. For activities that are likely to disturb eagles (versus other take), a. Maps and digital photographs of the eagle nests, foraging areas, and concentration sites where eagles are likely to be disturbed by the proposed activity (including the geographic coordinates of the activity area and important eagle-use area(s) and the distance(s) between those areas); b. Whether or not the important eagle-use area(s) is visible from the activity area, or if screening vegetation or topography blocks the view; and c. The nature and extent of existing activities in the vicinity that are similar to the proposed activity, and the distance between those activities and the important eagle-use area(s); 5. The date the activity will start and is projected to end; 6. An explanation of what interests(s) in a particular locality will be protected by the take, including any anticipated benefits to the applicant or to the public; 7. An explanation of why avoiding the take is not practicable, including at a minimum, a description of why take cannot be avoided after taking into consideration, relative to the magnitude of the impacts to eagles, (1) the cost of the remedy comparative with proponent resources; (2) existing technology; and (3) logistics in light of overall project purposes; or 8. For programmatic take, why take is unavoidable; and 9. A description of measures proposed to offset the detrimental impact of the proposed activity on the regional eagle population. The Service's Ecological Services Field Offices may provide technical assistance prior to development of permit applications. In many cases, the Service may be able to recommend measures to reduce the likelihood of take, negating the need for a permit. The technical assistance that we provide from the field will reduce the number of applications to our permit offices for activities that (1) are unlikely to take eagles, or (2) can practicably be modified to avoid the take. The Service may elect to conduct an on-site assessment to determine whether the proposed activity is likely to take eagles and whether reasonable modifications to the project will alleviate the probability of take. In addition, State and tribal natural resources agencies may also be able to provide information pertaining to the number and location of eagles, eagle nests and other important eagle-use areas within the area potentially affected by the activity. Application Evaluation Process. An initial consideration is whether take is likely to occur. Ideally, most potential applicants whose activities will not likely result in take will be dissuaded from applying for a permit after voluntary technical consultation with a Service field biologist. If, after an application is submitted, the Service determines that take is not likely to occur, we may issue the permit (if permit issuance criteria are met); however, if we do not consider take likely to occur, we will not subtract the authorized take from Regional take thresholds—unless follow-up monitoring reveals that it did actually occur. Our primary consideration when issuing permits under this regulation is whether the take would be compatible with the preservation of the bald eagle and the golden eagle, including consideration of the cumulative effects of other permitted take and additional factors affecting eagle populations. When evaluating the take that may result from an activity for which a permit is sought (e.g., residential development), we will consider the effects of the preliminary activity (construction) as well as the effects of the foreseeable ongoing future uses (activities associated with human habitation). The impacts and threshold distances that we will consider will not be limited to the footprint of the initial activity if it is reasonably foreseeable that the activity will lead to adverse indirect effects on eagles. For example, when evaluating the effects of expanding a campground, in addition to considering the distance of the expansion from important eagle-use areas, we would consider the effects of increased pedestrian and motor traffic to and from the expanded campground. In many cases, the potential for take could be greater as a result of the activities that follow the initial project. For example, the installation of a boat ramp 500 feet from an important eagle foraging area may not disturb eagles during the construction phase, but the ensuing high levels of boat traffic through the area during peak feeding times may cause disturbance. Trail construction 400 feet from a nest is generally unlikely to take eagles, but if the trail will be open to off-road vehicle use during the nesting season, we would need to consider the impacts of the vehicular activity as part of the impacts of the trail construction. If demand will exceed regional take thresholds (see above discussion under Population Assessment and Take Thresholds ), the permit office will need to evaluate how the proposed activity should be prioritized in accordance with the Regional structured allocation process established to ensure the Service adheres to the prioritization issuance criteria set forth in § 22.26(e) and § 22.27(d)(5) of the regulations. We must then consider whether the take is associated with the permanent abandonment or loss of a nest site, territory, or other important eagle-use area. In reality, this evaluation would be tied to our primary consideration of whether the take would be compatible with the preservation of the bald eagle or the golden eagle because take associated with the loss of an important eagle-use area will generally have larger population impacts than a single, one-time disturbance. Depending on the magnitude of the impacts, the potential take could exceed the thresholds we establish as necessary to safeguard eagle populations. If so, we must deny the permit unless the applicant commits to compensatory mitigation measures that would offset the take to the level where it is compatible with the preservation of eagles. Additional evaluation criteria include whether: (1) the take is necessary to protect a legitimate interest in a particular locality; (2) the take is associated with, but is not the purpose of the activity; (3) the take cannot practicably be avoided (or for programmatic authorizations, the take is unavoidable); and (4) the applicant has minimized impacts to eagles to the extent practicable, and for programmatic authorizations, the taking will occur despite application of Advanced Conservation Practices developed in coordination with the Service. Before issuing a permit, we will consult with federally-recognized tribes if issuance of the permit might affect traditional tribal activities, practices, or beliefs. The Service's obligation to consult on a government-to-government basis with Native American tribes is set forth in Executive Order 13175, Consultation with Indian Tribal Governments (Nov. 6, 2000) and the Service's own “Native American Policy” ( http://www.fws.gov/nativeamerican/Graphics/Native_Amer_Policy.pdf ). The areas where eagles would be taken have the potential of being regarded as areas of traditional religious and cultural importance to Indian tribes, commonly referred to as Traditional Cultural Properties (TCP). Eagles are highly significant species for Native American culture and religion, and as such they might be viewed as contributing elements to a TCP. Take of one or more eagles from a TCP area could potentially be considered an adverse effect to the TCP. Eagles also have cultural significance to the wider American public, with the result that the Service will need to consider the concerns of any party with cultural interest in eagles, eagle nests, and eagle habitat under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470). (For more discussion on the NHPA, see our discussion in the Required Determinations section below under National Historic Preservation Act. ) Permit Conditions. Under the Service Mitigation Policy (46 Fed. Reg. 7644-7663, January 23, 1981) and the President's Council on Environmental Quality regulations (40 CFR Part 1508.20 (a-e)), mitigation includes: avoidance, minimization, rectification, reduction over time, and compensation for negative impacts, in this case to bald eagles and golden eagles. Under these regulations, all permittees will be required to avoid and minimize the potential for take to the degree practicable, and for programmatic permits, to the point where take is unavoidable. Depending on the scale of the take, and the particular circumstances, the Service may require rectification (taking corrective action) and/or reduction over time from some permittees. However additional compensatory mitigation will be required only (1) for programmatic take and other multiple take authorizations; (2) for disturbance associated with the permanent loss of a breeding territory or important traditional communal roost site; or (3) as necessary to offset impacts to the local area population. Because our take permit thresholds are population-based, we have already determined before issuing each individual take permit that the population can withstand that level of take. Therefore, compensatory mitigation for one-time, individual take permits will not typically be necessary for the preservation of eagles. This approach is based on our analysis of regional population thresholds, and does not preclude a State or tribe from requiring additional mitigation for impacts authorized by a State or tribal permit or authorization within its jurisdiction. However, we intend to work with States and tribes to ensure that the total mitigation required of applicants by the Service and the State and/or tribe does not exceed what is appropriate to offset impacts to eagles from the proposed activity. These regulations contain general conditions that will apply to all permits we issue under this section. If the permit expires or is suspended or revoked before the required measures are completed, the permittee will remain obligated to carry out those measures necessary to mitigate for take that has occurred up to that point. Permittees must allow Service personnel, or other qualified persons designated by the Service, access to the areas where take is anticipated, within reasonable hours and with reasonable notice from the Service, for purposes of monitoring eagles at the site(s). Although we do not anticipate the necessity for ongoing monitoring by the Service at the majority of permit locations, we will use the data collected from limited site visits to reevaluate, as appropriate, the recommendations we provide in the guidelines as well as through case-by-case technical assistance to ensure that eagles are adequately protected without unnecessarily hindering human activity. If a permit is revoked or expires, the permittee must submit a report of activities conducted under the permit to the Service's Regional Migratory Bird Permit Office within 60 days of the revocation or expiration. The permit provides take authorization only for the activities set forth in the permit conditions. If the permittee subsequently contemplates different or additional activities that may take eagles, he or she must contact the Service to determine if a permit amendment is required to retain the level of take authority desired. Additionally, the validity of all permits issued under these regulations is conditioned on the permittee's compliance with all applicable Federal, tribal, State, and local laws and regulations governing the activity. Thus, if conduct of the activity violates State, tribal, or other laws, the Federal authorization granted by this permit is invalid. We are defining one term in § 22.26 that will apply only to the regulations in that section and not to eagle permits, generally. “Eagle” under § 22.26 means “a live bald eagle ( Haliaeetus leucocephalus ), live golden eagle ( Aquila chrysaetos ), a bald eagle egg, or a golden eagle egg.” Eagle take under § 22.26 is limited to live birds and eggs, and excludes non-living specimens, feathers, parts, and nests. We are in the process of developing implementation guidance to address procedural aspects of the permitting process. The guidance will cover time frames for permit issuance; identification of project impacts; appropriate mitigation measures; monitoring; coordination with States, tribes, and other Federal agencies; compliance with environmental reviews; and other specifics of the permit process, in order to ensure consistency in implementation throughout the Service. We will work with interested States and tribes in developing the implementation guidance, and the general public will also have the opportunity to provide input once we make a draft available through a notice in the Federal Register . Eagle Nest Take Under 50 CFR 22.27 Some eagles nest on or near electrical transmission towers, communication towers, airport runways, or other locations where they endanger themselves or create a hazard to humans. Regulations under this section, § 22.27, authorize removal and/or relocation of active and inactive eagle nests in what we expect to be the rare cases where genuine safety concerns necessitate the take. Examples include: (1) a nest tree that appears likely to topple onto a residence; (2) at airports to avoid collisions between eagles and aircraft; and (3) to relocate a nest built within a reservoir that will be flooded. Compensatory mitigation will sometimes but not always be required when nests must be removed for safety emergency purposes. This permit will also be available to take inactive nests only, in three additional types of situations. First, we may issue a permit to remove an inactive eagle nest where, although the presence of the nest does not create an immediate safety emergency, the take is necessary to ensure public health and safety. For purposes of this regulation, “necessary to ensure public health and safety” means “required to maintain society's well-being in matters of health and safety.” For example, if the take would be compatible with the preservation of the eagle, and there is no practicable alternative to nest removal, a permit could be issued under this section to remove an inactive eagle nest located in the only feasible site for a hospital that is needed in a particular locality. Second, a permit may be issued to take an inactive nest that is built on a human-engineered structure and creates a functional hazard that renders the structure inoperable for its intended use. For example, recently in Alaska, a pair of bald eagles nested on a crane that was temporarily not being used by the crane operator. Under these regulations, after waiting out the eagles' breeding cycle, the crane operator could be issued a permit to remove the inactive nest and reclaim the use of his crane. Finally, the nest could be removed for an activity that will provide a net benefit to eagles, or for any purpose if the permittee conducts or secures mitigation measures that more than offset the impacts of removing the nest, creating a net benefit to eagles. For example, we may issue a permit to take a nest where necessary to carry out a habitat restoration project that will enhance habitat for eagles. Also, a homeowner could potentially obtain a permit to remove one of multiple nests in a territory, one which has not been used for several years, if compensatory mitigation measures will produce a net benefit to eagles (e.g., the landowner donates a permanent conservation easement to protect the riparian area where the nesting pair and wintering eagles traditionally forage). The scale of mitigation will depend on the degree of biological impact. To remove a nest from what is apparently the only viable nest site in a territory would have a greater biological impact than in the example just provided, and more mitigation might be necessary in order to realize a net benefit to eagles. Where the nest would be taken for purposes other than to alleviate an immediate threat to safety, two additional criteria must be met before we may issue the permit. First, we may not issue the permit unless alternative suitable nesting and foraging habitat is available. Second, compensatory mitigation is required in every case. Except for applications associated with safety emergencies, prior to authorizing nest removal, we will review the availability of potential alternative suitable habitat (nest substrate, foraging areas, etc.) and the distance to those areas, in order to reasonably assess the likelihood of total loss of the territory. When known, we will consider such factors as the number of nests in a particular breeding pair's nesting territory and the last known date when the nest under consideration for take was used, in order to try to assess the relative value of the nest to the breeding pair. We will also consider the density of surrounding territories and the nests within those territories to evaluate the ability of the area to support a displaced pair and assess whether the loss of a particular nest may have negative local population impacts. For overall permit management, we will consider local-area population effects within the species-specific natal dispersal distances (43 miles for bald eagles, 140 miles for golden eagles). However, we believe it would be too burdensome to ask the proponent to provide data on that large a scale. We have found, in implementing the resource-recovery permit for take of inactive golden eagle nests (50 CFR 22.25), that data within a 10-mile radius of the nest provides us with adequate information to evaluate many of the factors noted above. Where practicable, nests should be relocated, or a substitute nest provided, in a suitable location within the same territory from which they were removed to provide a viable nesting site for breeding purposes of eagles within that territory, unless such relocation would create a similar threat to safety. Permits may also be issued to remove nests when it is determined by the Service that the nests cannot be relocated. We may issue programmatic nest take permits under this section if the permittee commits to comprehensive measures (ACPs) to reduce the need for take. For example, programmatic authorization could be an appropriate means of authorizing take at airports that, despite scientifically-based measures developed in coordination with the Service to reduce take, cannot completely avoid some take in the form of disturbance and emergency nest removal (when nests are discovered despite diligent efforts to prevent eagles from occupying the area). Authorizing programmatic nest take, where such comprehensive measures are being taken by airports to reduce take, will help to minimize “last minute” nest removal emergencies, thus providing better protection from liability for the airports and enhanced protection of eagles. We envision that there will be a need for permits that combine the two types of authorizations we are creating through this regulation (§ 22.26 and § 22.27), and perhaps additional authorizations as well. In such cases, we will usually issue one permit with dual (or multiple) authorizations. For example, to ensure safety at airfields, we would evaluate the airfield's wildlife hazard management plan to determine if it uses a progressive approach that starts with measures to reduce the presence of features attractive to eagles and ends with nest removal as a final option. If the management-plan components are adequate for protection of eagles, they would then become part of the permit conditions. The programmatic permit will not require re-application each year, but may be valid for up to 5 years, at which time the applicant could submit a request for renewal. There are annual reporting requirements and an option for the Service to re-evaluate the permit conditions if more take is occurring than anticipated. A permit such as described would be issued under the multiple authorities of existing § 22.23 (as revised by this rulemaking to extend permit tenure), new § 22.26, and new § 22.27. As with other eagle take permits, nest take permits issued under § 22.27 will be subject to the take thresholds discussed earlier and more fully in the final environmental assessment of this action. Similar to our approach to § 22.26 and some other recent Service regulations, we have not codified the application requirements within the regulation so we can more easily modify them based on new information and public input gathered through the triennial OMB information collection process (see above discussion under § 22.26, Permit Application Process ). The current application form we will use for this regulation requires applicants to submit the following information: (1) The number of nests proposed to be taken, whether the nest(s) is a bald eagle or golden eagle nest, and whether the nest(s) is active or inactive; and if known, whether it has been active in the 5 preceding breeding seasons. (2) Why the removal of the nest(s) is necessary, including the interest to be served in a particular locality; (3) A description of the property, including maps and digital photographs that show the location of the nest in relation to buildings, infrastructure, and human activities; (4) The location of the property, including latitude and longitude; (5) The length of time for which the permit is requested, including beginning and ending dates; (6) A statement indicating the intended disposition of the nest(s), and if active, the nestlings or eggs; (7) A calculation of the bald eagle or golden eagle area nesting population, including an appropriately-scaled map or plat showing the location of each eagle nest used to calculate the area nesting population unless the Service has sufficient data to independently calculate the area nesting population. (Not applicable for immediate safety emergencies.) (8) A description of the avoidance, minimization, and mitigation measures the applicant proposes to reduce take and offset the detrimental impact of the permitted activity. (Not applicable for immediate safety emergencies.) Even though the application form does not require applicants to describe proposed mitigation measures in cases of safety emergencies, we may require compensatory mitigation as a permit condition if appropriate to offset the detrimental impacts to eagles. New and Modified Definitions Under 50 CFR 22.3 These regulations revise three definitions and codify 13 new terms in § 22.3, the section of eagle permit regulations that defines terms and is applicable to all eagle permit regulations in part 22. We amend the regulatory definition of “take,” to add the term “destroy,” to apply to bald eagle nests, to ensure consistency with the Eagle Act's intention to prohibit unpermitted eagle nest destruction. We 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 with respect to both species. We are removing the existing definition of “golden eagle nest” from the list of definitions. Similarly, this rule replaces the old definition “inactive nest” with a new definition that differs primarily insofar as it includes bald eagles as well as golden eagles. The new definition reads: “a bald eagle or golden eagle nest that is not currently being used by eagles as determined by the continuing absence of any adult, egg, or dependent young at the nest for at least 10 consecutive days immediately prior to, and including, at present. An inactive nest may become active again and remains protected under the Eagle Act.” All nests are protected by the Eagle Act, whether active or inactive, and the take of any nest requires a permit. The reason for distinguishing between active nests and inactive nests and for defining the term “inactive nest” is because the new nest-take-permit regulation, as well as existing regulations for take of golden eagle nests for resource development and recovery operations (50 CFR 22.25), regulate nests differently depending on whether they are currently active or inactive. Under existing § 22.25, a permit may be issued only for inactive nests. Under the regulations being finalized by this rulemaking, a permit can be issued for an active nest only if the location of the nest poses an immediate threat to safety. This definition is intended to be applied only to questions of whether or not a nest may be taken with reduced risk of associated take of birds. It is not intended to convey any other biological status, nor will it be the only criterion for permit evaluation. We are codifying the term “important eagle-use area” in these permit regulations under § 22.26 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 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. To clarify terms used within the definition of “important eagle-use area,” we define “foraging area” to mean “an area where eagles regularly feed during one or more seasons.” We 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 such 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, suitable sites for feeding or sheltering. “Territory” is defined as “a defended area that contains, or historically contained, one or more nests within the home range of a mated pair of eagles.” “Cumulative effects” means “the incremental environmental impact or effect of the proposed action, together with impacts of past, present, and reasonably foreseeable future actions.” We define “indirect effects” as “effects for which a proposed action is a cause, and which may occur later in time and/or be physically manifested beyond the initial impacts of the action, but are still reasonably likely to occur.” The regulations include the requirement that an applicant have avoided and minimized impacts to eagles to the maximum extent practicable. “Practicable” is 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.” For programmatic permits, the comparable standard is “maximum degree achievable,” defined as “the standard at which any take that occurs is unavoidable despite implementation of Advanced Conservation Practices.” “Necessary to ensure public health and safety” is one criterion for obtaining a nest removal permit, and it is a criterion for prioritization in the regulations for both new permit types if demand exceeds take thresholds. We define it as “required to maintain society's well-being in matters of health and safety.” “Safety emergency” means “a situation that necessitates immediate action to alleviate a threat of bodily harm to humans or eagles.” Safety emergencies take precedence over take that is merely necessary to ensure public health and safety (as does take necessary for Native American religious use and renewal of programmatic permits). We may issue a permit to remove an active eagle nest in a safety emergency, but not for any other purpose. We are defining “programmatic take” as “take that (1) is recurring, but not caused by indirect effects (2) occurs over the long term and/or in a location or locations that cannot be specifically identified.” We define “programmatic permit” as “a permit that authorizes programmatic take.” A programmatic permit can cover other take in addition to programmatic take. We can issue programmatic permits for disturbance and as well as take resulting in mortalities, based on implementation of “advanced conservation practices” developed in coordination with the Service. “Advanced Conservation Practices” means “scientifically-supportable measures that are approved by the Service and represent the best-available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.” Since § 22.26 does not apply to nests or non-living eagle parts, with regard to that section, we define “eagle” to mean only live eagles or eggs. This definition does not apply within any regulations other than § 22.26. Revisions to Permit Regulations at 50 CFR 22.28 On May 20, 2008, the Service published regulations creating a new permit category at 50 CFR § 22.28 to provide expedited Eagle Act permits to entities authorized to take bald eagles through ESA section 7 incidental take statements (73 FR 29075, May 20, 2008). That new permit category applies to past section 7 take statements as well as any that may have been issued after the rule took effect. (e.g., for take of Sonoran Desert nesting bald eagles, or if bald eagles or golden eagles were ESA-listed in any other portion of their respective ranges). Now that a permit is available to authorize eagle take not associated with an ESA take authorization, for purposes of accountability and consistency, the same process and procedures should be used to authorize take under the Eagle Act regardless of whether it was also exempted under ESA section 7. Accordingly, as part of the regulations we are promulgating today, we are amending the regulations at § 22.28 to restrict their application to section 7 incidental take statements issued prior to the date today's rule becomes effective. For any incidental take exempted under ESA section 7 that is authorized after the date specified in DATES and that also constitutes take under the Eagle Act, the only permit that is available to provide Eagle Act take authorization is the § 22.26 permit being finalized herein. Therefore, except for take authorized through ESA section 10 permits (which confer authority to take under both the ESA and the Eagle Act under the new provision at 50 CFR § 22.11), any take we authorize that is associated with, but not the purpose of an activity, would be provided under the single regulatory authority we are finalizing today, 50 CFR § 22.26, rather than 50 CFR § 22.28. Revisions to Information Collection Requirements at 50 CFR 22.4 This section describes the requirement that Federal information collections, such as permit applications and report forms related to Federal permits, be reviewed and approved by the OMB. It also provides the approval number(s) (OMB Control Numbers) for the forms used to collect information related to eagle permits. We are removing the language describing the average reporting burden for all the collections related to eagle permits because that figure varies as new forms are added or removed and we are no longer required to provide this estimate. Revisions to General Permit Conditions at 50 CFR 13 As part of establishing the new permit authorizations under 50 CFR 22.26 and 22.27, we amend 50 CFR 13.12 to add the new permit types to be issued under 50 CFR 22.26 and 22.27. We also amend 50 CFR 13.11(d), the nonstandard fee schedule, to establish application-processing fees (user fees) for the permits. The general statutory authority to charge fees for processing applications for permits and certificates is found in 31 U.S.C. 9701, which states that services provided by Federal agencies are to be “self-sustaining to the extent possible.” Federal user-fee policy, as stated in OMB Circular No. A-25, requires Federal agencies to recoup the costs of “special services” that provide benefits to identifiable recipients. Permits are special services authorizing identifiable recipients to engage in activities not otherwise authorized for the general public. For the standard § 22.26 take permit and the § 22.27 nest take permit, we will assess a $500 permit application fee and a $150 permit amendment fee. For programmatic permits under either permit type, the application fee is $1,000 and the amendment fee is $500. While higher than many other Service permit application processing fees, these fees are comparable to those assessed for other migratory bird permits relative to the level of review necessary to process and evaluate an application for a permit to take eagles or to remove eagle nests under the authorities of the Eagle Act. 2 Furthermore, we expect these fees to make up less than half the permit-processing costs to the Service. 2 The notable exception is the permit-application-processing fee for take of golden eagle nests for resource recovery and development operations under 50 CFR 22.25, which is currently set at $100. We intend to propose a regulation in the near future to raise the processing fee to a level commensurate with the processing fees for the new § 22.27 nest take permit. The typical permit-application process will be less burdensome for the applicant than the permit process under the ESA, since an HCP is not required. Preparing an HCP can be time-consuming and is usually delegated to a professional consultant. HCPs often cover large geographic areas—some larger than a million acres—and set forth terms and mitigation measures designed to protect species for up to 100 years. In contrast, the information required to apply for an individual Eagle Act permit does not include an extensive habitat analysis, is easier to compile, and will require less information, since permits will be valid for no more than five years. Service biologists at GS-11 to 13 grade levels on the Office of Personnel Management General Pay Schedule, with support of GS-7 staff, would be responsible for pre-application technical assistance; reviewing and determining the adequacy of the information provided by an applicant; conducting any internal research necessary to verify information in the application or evaluate the biological impact of the proposed activity; assessing the biological impact of the proposed activity on the bald or golden eagle; evaluating whether the proposed activity meets the issuance criteria; preparing or reviewing NEPA documentation; determining consistency with other laws such as the section 106 of the NHPA; coordination and consultation with States and tribes; and preparing either a permit or a denial letter for the applicant. To evaluate the impact of the proposed activity, Service biologists may also need to visit the location to examine site-specific conditions. Programmatic permits will take considerably longer to craft and process. We expect most industry-wide or agency-wide standard practices for programmatic permits would be developed with the respective entities and Service staff who work on policy development in the Washington Office, in coordination with Service Regions. We anticipate that some programmatic permits, particularly early ones will require the Service to convene and lead meetings of workgroups representing the entities seeking permits. The workgroups would develop metrics for establishing/quantifying baseline effects through estimates or a sampling scheme; identify the best-available techniques and mutually-approved standard practices for minimizing the likelihood of take of eagles; and develop standards for system or program risk analyses, guidance for determining reasonable timeframes for completion of any required retro-fitting, standards and guidelines for effective monitoring programs and reports of eagle take to the Service, and measurable criteria for evaluating the implementation and efficacy of practices. Over the long term, we estimate it will take about 100 Service staff hours to process the average programmatic take permit. The programmatic permits we develop initially will likely take longer, as will large-scale and more complex programmatic permits. Those may take up to 400 Service staff hours to prepare. We estimate it will cost the Service approximately $1,750 to process the average § 22.26 permit application, including $940 for pre-application technical assistance from Field Office biologists, and $810 for the Regional Migratory Bird Permit Office once it receives the application. For § 22.27 permits, we estimate the cost to the Service to be $1,950. We estimate it will cost the Service about $650 to amend the average permit. The average programmatic permit application under either § 22.26 or § 22.27 is likely to cost the Service $5,000. We estimate the average cost to the Service for substantive amendments to programmatic permits to be $1,500. These estimates include technical assistance provided by the Field Office, as do the hourly estimates below. On average, we estimate that it will take Service employees approximately 42 hours to process each individual § 22.26 permit application, approximately 46 hours for each § 22.27 permit application for take of an eagle nest, and approximately 120 hours for a programmatic permit under either permit type. Therefore, an application fee of $500 will offset only about 28% of the cost to the Government of responding to a request for a § 22.26 and about 25% of the cost of processing a § 22.27 nest-take-permit application. The $150 standard amendment fee will make up about 27% of the Service's costs. The $1,000 programmatic permit application fee will recoup about 20% of the permit processing cost to the Service. The $500 programmatic-permit amendment fee will recoup about 33% of the cost to the Service. Although these fees are not high enough to allow the Service to recoup even half the cost of issuing them, they are significantly higher than other permit application processing fees we assess. The fees associated with these regulations must be manageable to small business owners, home owners, and other members of the public who may find a higher fee prohibitive. Economic Analysis A brief assessment to clarify the costs and benefits associated with this rule follows: Change. This rule will provide for the authorization of activities that take bald eagles and golden eagles under the Bald and Golden Eagle Protection Act (Eagle Act). Under the rule, the public will have the opportunity to apply for permits to authorize the take of bald eagles and golden eagles under the Eagle Act. Some incidental take of eagles was previously authorized under the Endangered Species Act, primarily bald eagles covered by an incidental take statement issued pursuant to ESA section 7. Some bald eagle take was authorized under ESA section 10 incidental-take permits. Twelve ESA section 10 permits authorized take of golden eagles as covered listed species. However, ESA take authorization for eagles has not been issued in Alaska, where neither species of eagles was ever listed under the ESA. Thus, any authorization for take in Alaska would be newly available. Authorizations for take of bald eagles and golden eagles are expected to increase from what was authorized under the ESA. Baseline . The costs and benefits will result from (1) the authorization of take of bald eagles and golden eagles throughout the United States under § 22.26, and (2) the number of permits for take of bald eagle and golden eagle nests throughout the United States under § 22.27. Costs Incurred. In general, the costs incurred due to the rule would relate to the costs of assembling the necessary information for the permit application, permit fees, and the costs of monitoring and reporting requirements associated with the permit. As explained below, it is difficult to predict the number of applications the Service should anticipate under these regulations. However, due to various factors, we expect that demand for eagle-take permits will increase, from about 54 authorizations per year under the ESA to approximately 910 permits per year under the two new Eagle Act permit regulations. Therefore, using the current number of authorizations issued under the ESA as a baseline, approximately 856 permit authorizations would be new. Some of these entities (those that are non-governmental) would bear the higher permit application fees under the Eagle Act as compared to the current fee for an ESA incidental-take permit (to capture a more equitable share of the costs to the Service that would otherwise be borne by taxpayers), although many applicants will be State, local, tribal, or Federal agencies, which are exempt from application processing fees for Service permits. Costs for other aspects of the permit-application process will generally be lower than costs associated with the ESA section 10 permit application process (e.g., less information needs to be compiled and provided to the Service as part of this permit application versus the requirement to create a Habitat Conservation Plan (HCP) under the ESA). We are establishing a $500 permit application processing fee for the standard § 22.26 take permit and standard § 22.27 nest-take permit. Each of these permit categories will require a $150 fee for permit amendments. Programmatic permits under both regulations require a $1,000 processing fee and a $500 amendment fee. We anticipate receiving about 1,120 take permit applications under § 22.26 nationwide annually, and 20 applications for programmatic permits under § 22.26. We estimate receiving 70 nest-take-permit applications under § 22.27 and 20 applications for programmatic nest-take permits. (We anticipate that we will issue permits in response to the majority of these applications, particularly the programmatic permit applications, because applicants will already have coordinated with the Service before applying for a permit, and many project proponents will have either adjusted their projects so as not to need a permit or concluded that a permit will not be issued for the take associated with the proposed project. The remaining potential applicants are those who are likely to need and qualify for a permit.) Approximately 60 standard permits and 16 programmatic permits may need amendment annually. We expect about half of the applicants for both types of permits to be Federal, State, local, or tribal governments, none of which are required to pay a permit-application processing fee or amendment-processing fee. Therefore, we estimate that annual application fees and amendments will total approximately $320,000 (560 permit applications under § 22.26 x $500 fee, + 35 nest-take-permit applications under § 22.27 x $500 fee, + 20 programmatic permit applications x $1,000 fee, + 30 standard amendments x $150 amendment fee, + 8 amendments to programmatic permits x $500 amendment fee). There is no fee for processing annual reports. These permit fees would be new costs related to this rule. There may be additional costs associated with the permit process, which may include mitigation costs and, if the applicant engages a consultant or attorney, consultant and legal fees. The information required to apply for an individual Eagle Act permit is less extensive and easier to compile than permits under the ESA. Information such as latitude and longitude are publicly available (e.g., Google Earth). The majority of people will be able to submit this information to the Service without the need to hire a consultant, especially with the help of local and State government staff who may be willing to provide assistance with location and distance information between the project and the eagle nest or use area. The Service will direct applicants to available, free or inexpensive tools and services for obtaining the necessary information. Larger project proponents may prefer to hire consultants. Consultant fees could range from $300 to many thousands of dollars, depending on the scale of the project, but presumably still would be cost-effective, as compared to avoiding the take, since the choice is the applicant's to make. In many cases, for larger projects, project proponents will have hired consultants to address a multitude of other factors unrelated to impacts to eagles, so additional costs related to Eagle Act authorizations would be minimal. We anticipate that there will be many instances where project proponents approach the Service, and based on preliminary coordination with us, adjust project plans to reduce the likelihood of take to the point where no permit is needed, and none is therefore issued. Some costs will be associated with this process. However, these costs are not the result of this permit regulation, but stem from the statutory prohibitions against taking eagles. Costs may have been incurred related to current projects that are in process and are delayed and potential projects that were not initiated due to the lack of availability of ESA permits during the period after the bald eagle was delisted in most parts of the lower 48 States and prior to Eagle Act take permits becoming available under this rule. These costs would be attributed to the determination to delist the bald eagle. Therefore, this analysis does not quantify these costs. In addition to costs to the public, the Service will incur administrative costs due to this rulemaking. We do not have a firm basis on which to confidently predict how much demand there will be for permits under these regulations. We estimate that the number of eagle-take permits will increase under the rule from an average of 54 authorizations previously issued under the ESA, to 830 Eagle Act § 22.26 take permits, 40 nest-take permits issued under § 22.27, and 40 programmatic permits issued under both regulations, annually. We expect an increase because: (1) many smaller projects will no longer be able to get under the ESA section 7 “umbrella” of a Federal project when seeking authorization to take bald eagles; (2) following delisting, it is now more acceptable and less burdensome to get a permit to take eagles; (3) most bald eagle populations are increasing; (4) permits will be available for golden eagle take, and (5) ESA take permits were not issued in Alaska, but Eagle Act permits may be issued there under these permit regulations. The cost of issuing most permits will decrease, but many authorizations similar to those we previously granted under section 7 of the ESA (where the consultation covered numerous species in addition to bald eagles) would now require the issuance of an Eagle Act permit in addition to a biological opinion. On average, we estimate it will cost the Service approximately $1,750 to process the average § 22.26 permit application (including pre-application technical assistance). Assuming approximately 1,120 permit applications under § 22.26, 70 nest-take-permit applications under § 22.27, 40 programmatic permit applications, 60 standard permit amendments, and 16 programmatic amendments, per year, the annual costs associated with processing permit applications to the Service would total approximately $2,348,500 (1,120 x $1,750 for § 22.26 permit applications, + 70 x $1,950 for § 22.27 nest-take-permit applications, + 40 x $5,000 for programmatic-permit applications, plus 60 x $600 for standard amendments, plus 16 x 1,000 for programmatic amendments). The Service will also incur the cost of providing technical assistance, even where no permit is issued. The workload associated with each such consultation will generally be less than for situations where a permit is issued, but it will often be substantial. We estimate the average technical consultation will require 20 hours of staff time, and we anticipate the number of such consultations not resulting in permits will be about 800 per year, resulting in $628,000 in increased costs to the Service from technical consultations. All estimated costs for staff time include salary and benefits. Overall, we estimate that new administrative costs for the Service to implement this rule will be over $3 million per year, including the costs to Regional and Field Offices for actual implementation of the permit program, plus costs associated with the development and maintenance of the program (e.g., training, developing implementing policies, responding to Freedom of Information Act requests, budget formulation, etc.), which will be borne by the Service's Migratory Bird and Ecological Services program offices. Benefits Accrued. Under the rule, benefits to the public will accrue from issuance of permits to take bald eagles and golden eagles throughout the United States. In general, benefits will include increased value in land that can now be developed or harvested for timber, as well as the elimination of the risk and future costs associated with the potential unpermitted take of eagles that could occur from the development activities. Benefits will depend on the level of potential future growth associated with the authorized permit activity. Only minimal take of golden eagles (as covered non-listed species in HCPs) has been authorized under the ESA prior to proposing this rule. However, because population data indicate that take of golden eagles should be extremely limited, we anticipate issuing only a minimal number of new take authorizations for golden eagles under these new regulations. Some take of golden eagles throughout the United States that may be authorized by these regulations may result in new development and activities that could not have proceeded legally without this rule. We expect that economic benefits may accrue as a result of the implementation of this rule for oil and gas development operations, farming and ranching operations, mining companies, utilities, the transportation sector, and private land owners. Overall, we anticipate issuing approximately 910 take permits per year, under both regulations. We have completed a final environmental assessment (FEA) of the effects of this rulemaking, which is available on our website at http://www.fws.gov/migratorybirds/baldeagle.htm ). Under the FEA, we developed take thresholds that will guide permit issuance to ensure that take is compatible with the preservation of the bald eagle and the golden eagle. As a result, we anticipate that the amount of take that will be requested and authorized under this permit regulation will not significantly affect bald or golden eagle populations. Response to Public Comments Unless otherwise noted, each subject heading includes all substantive comments we received on both the June 5, 2007, proposed rule and the proposed revisions to the rule noted in our August 14, 2008, notice re-opening of the comment period on the rule and announcing the availability of the DEA. We are responding to the comments concerning the environmental analysis, population modeling, take thresholds, and other aspects of the DEA in the FEA. Copies of the FEA are available at http://www.fws.gov/migratorybirds/baldeagle.htm .) Populations and Take Thresholds. (The comments addressed under this heading were all made on the June 5, 2007, proposed rule. Comments addressing populations and take thresholds that we received after release of the draft environmental assessment are addressed in the FEA.) Comment: The use of the Partners in Flight (PIF) threshold for rate of population decline beyond which permits would not be issued is inappropriate. The PIF threshold is unacceptable because it amounts to a 15% loss over 30 years. Service response: The final regulation caps the number of permits we can issue with thresholds designed to ensure increasing or stable breeding populations. Our reasoning is based on the fact that steady declines, even as small as 0.54% annually, the rate we proposed in the June 5, 2007, proposed rule (72 FR 31141), will cumulatively result in an unacceptably large decrease in population over time. Accordingly, we are establishing take thresholds consistent with the goal of stable or increasing breeding populations. Therefore, for purposes of this regulation, “compatible with the preservation of the bald eagle and the golden eagle” means “consistent with the goal of stable or increasing breeding populations.” Although take thresholds are based on regional populations, the regulation requires the Service to consider additional factors, such as cultural significance, that may warrant protection of smaller and/or isolated populations within a region. We anticipate no more than modest increases in bald eagle populations in the future. We have no evidence at this time that leads us to expect any increase in golden eagle populations. Golden eagles appear more likely to experience declines, due to loss of prey base, disturbance, and loss of habitat due to resource extraction activities, and other factors. For more discussion on population thresholds, see our FEA of this action. Comment: The appropriate population threshold on which to base the number of permits that can be issued (to be compatible with the preservation of the bald eagle and the golden eagle) should be “no negative impact on the eagle's population growth rate.” Service response: We disagree with this comment. Even if considered a desirable goal, maintaining the same growth rate indefinitely is unrealistic. How large a population is ideal for either species of eagle depends on a range of factors, but as with any other species, there are ecological limits that weigh against and ultimately prevent continuous growth. Although we do not predict either species of eagle will become overabundant in the foreseeable future, some regional populations of bald eagles will likely level out after reaching an ecologically-sustainable size. To prohibit human activity within those areas because the growth rate of eagles has slowed would overly burden people without any benefit to eagles. Comment: The Service should clarify the relationship between the permit regulation and the draft bald eagle post-delisting monitoring plan (PDMP). The PDMP data will not be adequate for purposes of detecting the rate of decline the Service will use for permitting purposes, and neither will the other monitoring sources referenced in the rule. The Service should instead apply a harvest model that takes into consideration current population trend and assumes that permits issued will result in take. Service response: We acknowledge that our description in the June 5, 2007, proposed rule of how we intended to analyze appropriate levels of take was not as clear as it could have been (72 FR 31141). Our intent was always to use modeling, similar to harvest modeling we conduct for other migratory bird species. The PDMP is a national-level monitoring plan designed to detect declines that would merit reconsideration of the bald eagle as threatened or endangered under the ESA, whereas the population trends on which we would base take thresholds under this take permit regulation will be smaller in scale and at levels that are below the detectability of the PDMP. To establish take thresholds for this permit regulation, we will rely on the best data we can obtain, including the sources noted in the proposed rule. We will use models to ascertain how much take could be permitted before causing impacts to eagle populations that would not be compatible with the preservation of the species. If we have inadequate data to run the models and no other means of assessing the status of the population where the take will occur, we may not be able to determine that the take is compatible with the preservation of the species. If we are unable to make that determination, we cannot authorize take under the Eagle Act. Comment: Take thresholds should be assessed based on the national population as a whole. (The commenter did not provide a basis for this recommendation.) Service response: Under the ESA, listing and delisting decisions must be made purely on the basis of the “best scientific and commercial data available.” Effects on the economy are excluded from the analysis, as are other human social or cultural values beyond those furthered by the ESA. Because the Eagle Act is not delimited by such statutory constraints, and because protecting regional and local populations of bald eagles and golden eagles is culturally important to the American people, this regulation interprets compatibility with the preservation of the species to include maintaining regional and locally-important populations. Take thresholds would be based on modeling of regional population data, but within a regional population, as part of our evaluation of take applications, we will take into consideration factors that may warrant protection of more localized populations, including the cultural significance of a local population. Comment: In addition to the nine bald eagle management populations mentioned in the proposed rule, the Service needs to assess eagle populations by State and NABCI bird conservation area, or local areas. Otherwise some regional and local populations would be threatened. Local populations can be of unique importance, including to the public. Service response: We are using the NABCI bird conservation regions (BCRs) to manage golden eagle populations, further broken down by portion of BCR within each Service Region. For bald eagles, we are not using nine management populations as we referred to in the proposed rule. Instead, to establish management populations for bald eagles, we used natal populations to look at distribution across the landscape, allowing us to determine rough natural “boundaries” between regional eagle populations. Because the management populations delineated by this approach roughly correspond to the Service's organizational structure made up of 8 Service Regional Offices, we will manage bald eagles using populations within Service Regions, with some adjustments, explained in more detail in the FEA. Regarding the concern that local populations will not be adequately protected, as part of our evaluation of take applications, we will take into consideration biological and human-induced pressures on, and cultural significance of, more localized populations. In evaluating whether the take is compatible with the preservation of the eagle, we must consider cumulative effects, which will help ensure adverse impacts are not concentrated in one locality. Comment: The regulations should explicitly state that permits will be denied if the population declines to the threshold level. Service response: The regulations explicitly state that before issuing a permit, the Service must determine that the take is compatible with the preservation of the bald eagle or the golden eagle, which is the statutory mandate. If data indicate populations at either national or regional scales are declining, depending on the source and severity of the decline, the Service may establish lower take permit thresholds where appropriate or suspend permitting until data confirm the population can support take. Comment: The Service provides no assurances that bald eagles in Arizona will be protected. Arizona bald eagles must be considered separately. Service response: As explained in greater detail within our FEA, we will not issue permits that would result in declines in the Sonoran Desert bald eagle population. Permit thresholds for all regions of the U.S. will be consistent with the goal of stable or increasing breeding populations. Comment: The proposed rule stated that, if populations decline to the threshold level, the Service will refrain from issuing permits “until such time that the take would be compatible with the preservation of the bald or golden eagle.” That statement should be amended to add “unless human life may be impacted.” Service response: Depending on what factors are responsible for the decline and whether the decline is likely to be short-term (part of a recurring population cycle) or long-term, the Service may not need to suspend permit issuance, and may merely reduce the number of permits issued. However, if the breeding population is reduced to the degree that issuance of a permit would be incompatible with the preservation of the bald eagle or the golden eagle, we cannot issue that permit and remain in compliance with the Eagle Act, which authorizes the Secretary of the Interior to issue take permits only if he finds that the take would be compatible with the preservation of the bald eagle or golden eagle (16 U.S.C. 668a). Fortunately, in the majority of cases, emergency take will meet that standard, since many threats to human life that could be caused by eagles may also threaten the eagles themselves. For example, if for human safety purposes, a utility needed to remove a nest to prevent an electrical fire or an airport needed to haze eagles to prevent them from nesting near runways, the authorized take would prevent both eagle and human mortalities. Because issuing a permit in these types of situations would prevent harm to the eagle, the action would be compatible with the preservation of the eagle. Nevertheless, to ensure that safety emergencies can be legally redressed, we are adding issuance criteria to the regulations to ensure that take associated with safety emergencies is given priority over take for any other purpose. Comment: The statement that permits will be issued on a limited basis raises concerns that a predictable incidental take process will not be available. Service response: The Service has the responsibility to implement certain laws that protect wildlife, including eagles. The Eagle Act contains a mandate that take of eagles be compatible with the preservation of the species. Unlimited authorizations for take would be compatible with the preservation of the bald eagle and the golden eagle only if demand for permits remains below the level that would cause population declines. If demand is higher than that threshold, we must limit the number of permits we issue. Hence, the availability of permits will depend on the level of demand and the availability of reliable data reflecting healthy eagle populations. In addition, the process will be predictable in that the take thresholds for each year in each region will be known. Comment: Since the Service cannot issue permits unless the take will be compatible with the preservation of the species, meaning that permits cannot be issued without adequate data, the Service should consider either requiring permittees to contribute to monitoring efforts, or making the availability of permits expressly contingent on there being in place a monitoring program sufficiently rigorous to detect the threshold decline upon which permit issuance will be predicated. Service response: As discussed earlier in the preamble, and more fully in the FEA, we have reduced initial take thresholds for both species, capping permitted take for bald eagles at 5% of estimated annual productivity and for golden eagles at historically-authorized take levels. This more conservative approach will buffer the natural variability in vital rates affecting population trends and, perhaps more importantly, ensure against gaps in our data. “Other interests in a particular locality” Comment: The Service states that the Eagle Act's authority for granting the proposed permits stems from the Act's provision that the Secretary of the Interior may issue permits “for the protection of wildlife or of agricultural or other interests in a particular locality.” The final rule must define “other interests.” Without doing so, the rule is an overbroad interpretation of the Eagle Act because it ignores the fact that “other interests” is associated with “wildlife” and “agricultural” interests, and does not comport with the remainder of the statute's provisions restricting the purposes for which take can be authorized. The proposal is not consistent with the Eagle Act because it would authorize take for any purpose or activity, whereas the statute clearly intended to limit the purposes for which take could be authorized. Furthermore, the proposal fails to show what “other interests” have been jeopardized by the long-standing legal prohibition on taking eagles. At the very least, the Service needs to delineate what “other interests” will qualify for the permit. The proposal's over-broad interpretat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-21589. Public record. Not legal advice.