Protection of Bald Eagles; Definition, 8265-8268 [06-1440]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 32 (Thursday, February 16, 2006)]
[Proposed Rules]
[Pages 8265-8268]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1440]



[[Page 8265]]

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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 22

RIN 1018-AT94


Protection of Bald Eagles; Definition

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

SUMMARY: In anticipation of possible removal (delisting) of the bald 
eagle in the 48 contiguous States from the List of Endangered and 
Threatened Wildlife under the Endangered Species Act (ESA), the U.S. 
Fish and Wildlife Service (the Service) is proposing a definition of 
``disturb'' under the Bald and Golden Eagle Protection Act (BGEPA) to 
guide post-delisting bald eagle management. Because BGEPA's prohibition 
against disturbance applies to both bald and golden eagles, the 
definition will apply to golden eagles (Aquila chrysaetos) as well as 
bald eagles (Haliaeetus leucocephalus).
    If the bald eagle is delisted, the BGEPA will become the primary 
law protecting bald eagles. BGEPA prohibits take of bald and golden 
eagles and provides a statutory definition of ``take'' that includes 
``disturb.'' Although disturbing eagles has been prohibited by BGEPA 
since the statute's enactment, the meaning of ``disturb'' has never 
been explicitly defined by the Service or by the courts. To define 
``disturb,'' we rely on the common meaning of the term as applied to 
the conservation intent of BGEPA and the working definitions of 
``disturb'' currently used by Federal and State agencies to manage bald 
eagles. This proposed definition of disturb will apply to Alaska, where 
the bald eagle has never been listed under the ESA, as well as the 48 
contiguous States. (Eagles do not occur in Hawaii.)
    In addition to this proposed rulemaking, the Service is soliciting 
public comment on two related proposals published separately in this 
part of today's Federal Register. First, the Service is re-opening the 
public comment period on the proposed rule to remove the bald eagle 
from the list of threatened species under the ESA (16 U.S.C. 1531 et 
seq.); we originally proposed delisting the bald eagle on July 6, 1999 
(64 FR 36453). Second, we are soliciting comment on draft National Bald 
Eagle Management Guidelines.

DATES: We will accept written comments on this proposed rule until May 
17, 2006.

ADDRESSES: You may submit comments and other information, identified by 
RIN 1018-AT94, by any of the following methods:
     Mail: Brian Millsap, Chief, Division of Migratory Bird 
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
MBSP-4107, Arlington, Virginia 22203. Attn: RIN 1018-AT94.
     Hand Delivery/Courier: Same address as above.
     E-mail: BaldEagle--ProposedRule@fws.gov. Include ``RIN 
1018-AT94'' in the subject line of the message.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and Regulatory Identification Number (RIN) for this rulemaking. For 
detailed instructions on submitting comments, file format and other 
information about electronic filing, and additional information on the 
rulemaking process, see the ``Public Comments Invited'' heading at the 
end of the SUPPLEMENTARY INFORMATION section of this document. In the 
event that our Internet connection is not functional, please submit 
your comments by the alternate methods mentioned above.
    The complete file for this proposed rule is available for 
inspection, by appointment, during normal business hours at the 
Division of Migratory Bird Management, 4501 North Fairfax Drive, Room 
4107, Arlington, Virginia 22203-1610. Please call 703-358-1714 to make 
an appointment to view the files.

FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory 
Bird Management, (see ADDRESSES section); or via e-mail at: Eliza--
Savage@fws.gov; telephone: (703) 358-2329; or facsimile: (703) 358-
2217.

SUPPLEMENTARY INFORMATION:

Background

    For a discussion of the history of the bald eagle's status in the 
United States, including legislative and regulatory actions taken to 
protect and recover bald eagle populations, see our re-opening of the 
comment period on the proposed rule to delist the bald eagle, published 
separately in this part of today's Federal Register.

Bald Eagle National Management Guidelines

    Since the bald eagle was listed under the ESA, the ESA has been the 
primary law protecting bald eagles in the 48 contiguous States. If the 
bald eagle is delisted under the ESA, the BGEPA (16 U.S.C. 668-668d) 
will become the primary law protecting bald eagles in the lower 48, as 
it has continued to be in Alaska where the bald eagle was never listed 
under the ESA. The BGEPA protects both bald and golden eagles. It 
prohibits take of both species and provides a statutory definition of 
``take'' that includes ``disturb.'' To provide guidance to land 
managers, landowners, and others who plan activities in the vicinity of 
bald eagles, the Service has developed draft National Bald Eagle 
Management Guidelines. (See our notice of availability of the draft 
guidelines published separately in this part of today's Federal 
Register.) In the event the bald eagle is delisted, the guidelines will 
provide information to the public regarding how to avoid disturbing 
bald eagles. Secondly, the guidelines include additional recommended 
practices that can benefit bald eagles. The draft guidelines are based 
on the definition of ``disturb'' that we are proposing in this 
rulemaking.
    Although the Guidelines are not law and strict adherence to them is 
not mandatory, they will benefit both eagles and people by: (1) 
Publicizing the provisions of the BGEPA and the Migratory Bird Treaty 
Act (16 U.S.C. 703-712) that continue to protect bald eagles, in order 
to reduce the possibility that people will violate those laws, (2) 
advising landowners, land managers and the general public of the 
potential for various human activities to disturb bald eagles, and (3) 
encouraging land management practices that benefit bald eagles and 
their habitat. We are soliciting public input on the guidelines. To 
obtain a copy, see the Federal Register notice announcing the 
availability of the National Bald Eagle Management Guidelines for 
public comment published separately in this part of today's Federal 
Register.

Description of the Proposed Rulemaking

    Through an amendment to 50 CFR 22.3, we propose to define the term 
``disturb'' under the BGEPA. Disturbing bald and golden eagles is 
prohibited because BGEPA prohibits ``take'' of eagles, and defines 
``take'' to include ``disturb.'' Until now, the meaning of ``disturb'' 
has never been explicitly defined by the Service or by the courts. To 
define ``disturb,'' we rely on the common meaning of the term as 
applied to the conservation intent of BGEPA and the working definitions 
of ``disturb'' currently used by Federal and State agencies to manage 
bald and golden eagles.
    ``Disturb'' is defined by the American Heritage Dictionary of the 
English Language (4th ed., 2000) as:

    ``1. To break up or destroy the tranquillity or settled state 
of: ``Subterranean fires and deep unrest disturb the whole area'' 
(Rachel

[[Page 8266]]

Carson). 2. To trouble emotionally or mentally; upset. 3a. To 
interfere with; interrupt: noise that disturbed my sleep. b. To 
intrude on; inconvenience: Constant calls disturbed her work. 4. To 
put out of order; disarrange.

    The Merriam-Webster Online Dictionary (2004) defines disturb as:

    ``1a: to interfere with : INTERRUPT. b: to alter the position or 
arrangement of. c: to upset the natural and especially the 
ecological balance or relations of . 2a: 
to destroy the tranquillity or composure of. b: to throw into 
disorder. c: ALARM. d: to put to inconvenience.''

    Thus, disturb can be applied to individuals as well as to natural 
forces and universal concepts (e.g., ``disturbing the peace''). As 
applied to individuals, the concept of disturb implies and requires 
there be a psychological or physiological component--essentially an 
agitating effect--on the individual being disturbed.
    Biological studies of eagle behavior indicate that eagles are 
particularly vulnerable to interference during territory establishment, 
courtship, egg-laying, incubation, and parenting of nestlings. 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 interrupt or interfere with 
the behavioral patterns of eagles. Further disruption may also result 
from human activity that occurs after the initial habitat alterations 
and construction activities (e.g., residential occupancy or the use of 
commercial buildings, roads, piers, and boat launching ramps).
    When the BGEPA was enacted, Congress intended it to be the primary 
vehicle by which eagles would be protected from extinction, and as such 
Congress provided a broad prohibition in its definition of ``take,'' by 
defining it to include: pursue, shoot, shoot at, wound, kill, capture, 
trap, collect, molest or disturb. (Congress added the term ``poison'' 
to the definition in 1972 (P.L. 92-535 [86 Stat. 1064)], October 23, 
1972).) In keeping with the conservation intent of the BGEPA, we have 
determined that the following biological premises are necessary to 
secure long-term protections for the bald and golden eagle populations: 
prevention of nest abandonment and prevention of death or injury 
resulting from interference with normal breeding, feeding, and 
sheltering habits.
    Accordingly, we propose to define ``disturb'' under the BGEPA as 
follows: ``To agitate or bother a bald or golden eagle to the degree 
that interferes with or interrupts normal breeding, feeding, or 
sheltering habits, causing injury, death, or nest abandonment.'' In 
addition to immediate impacts, this definition encompasses impacts that 
result from human-induced alterations initiated around a previously 
used nest site during a time when eagles are not present, if, upon the 
eagle's return, such alterations agitate or bother an eagle to a degree 
that interferes with or interrupts normal breeding, feeding, or 
sheltering habits and causes injury, death, or nest abandonment. This 
definition is consistent with how ``disturb'' has been interpreted in 
the past by the Service and other Federal and State wildlife and land 
management agencies.
    The definition is intended to cover situations where the 
interference or interruption of an eagle's breeding, feeding, or 
sheltering habits causes injury or death not just to themselves, but 
more typically to other eagles: the juveniles or eggs. For example: if 
adult eagles are repeatedly flushed from a nest, their young may 
overheat and die, or their eggs may cool too much and fail to hatch.
    Biological literature indicates that factors such as the proximity, 
frequency, magnitude, and duration of activities, along with the 
presence or absence of vegetative buffers and topographic changes in 
terrain, determine how an activity impacts eagles. Vegetation 
surrounding a nest tree or concentration area may serve to buffer, 
conceal, or muffle human activities from the eagle's visual or auditory 
awareness. Therefore, site-specific factors can affect the likelihood 
and degree of impacts to the eagles. Individual eagles and pairs of 
eagles demonstrate remarkably different thresholds for disturbance. On-
site evaluations of the terrain, existing vegetation, existing human 
activities and/or development, sight lines from the nest, and observed 
behaviors of the eagles in that particular locality will help to 
determine whether disturbance is likely to occur on a case-by-case 
basis. The National Bald Eagle Management Guidelines will provide 
assistance to people whose activities may affect bald eagles based on 
these varying factors (see our notice of availability of the guidelines 
published separately in this part of today's Federal Register).

Required Determinations

    Energy Supply, Distribution or Use (E.O. 13211). On May 18, 2001, 
the President issued an Executive Order addressing regulations that 
affect energy supply, distribution, and use. E.O. 13211 requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. This rule is not expected to significantly affect 
energy supplies, distribution, and use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.
    Regulatory Planning and Review (E.O. 12866). This rule is a 
significant regulatory action subject to review by the Office of 
Management and Budget (OMB). OMB makes the final determination of 
significance under Executive Order 12866.
    a. The Service does not anticipate that this rule will have an 
effect of $100 million or more on the economy. This rule defines an 
existing statutory term in a manner largely consistent with how it is 
currently interpreted by State and Federal agencies. The Service is 
seeking comments from the public on any potential costs and/or benefits 
associated with promulgating this regulatory definition of ``disturb'' 
and providing guidance for avoiding such disturbance. In particular, 
the Service is interested in information about the level of anticipated 
conflicts between eagles and various land use activities to help 
determine the expected impacts.
    b. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This rule 
deals solely with governance of bald and golden eagle take in the 
United States. No other Federal agency has any role in regulating bald 
or golden eagle take. Although some other Federal agencies regulate 
activities that impact wildlife (including eagles) and such impacts may 
constitute take, the definition of ``disturb'' promulgated by this rule 
is similar to existing operative interpretations of the term.
    c. This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No entitlements, grants, user fees, or loan programs 
are associated with the regulation of bald or golden eagle take.
    d. This rule may raise novel legal or policy issues.
    Regulatory Flexibility Act. The Department of the Interior 
certifies that this document will not have a significant economic 
effect on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 804(2).
    Description of Small Entities Affected by the Rule. This rule 
applies to any individual, government entity, or business entity that 
undertakes or wishes to undertake any activity that may disturb bald or 
golden eagles. It is not possible to define precisely or

[[Page 8267]]

enumerate these entities because of uncertainty concerning their plans 
for future actions and incomplete scientific knowledge of which 
activities in specific cases will disturb bald or golden eagles. Small 
entities that are most likely to engage in activities that may disturb 
bald or golden eagles include: Small businesses that are engaged in 
construction of residential, industrial, and commercial developments, 
small timber companies, small mining operations, and small governments 
and small organizations engaged in construction of utilities, 
recreational areas, and other facilities. These may include tribal 
governments, town and community governments, water districts, 
irrigation districts, ports, parks and recreation districts, and 
others.
    Expected Impact on Small Entities. The rule defines the term 
``disturb,'' which is contained in the definition of ``take'' in the 
BGEPA. The definition is consistent with the Service's interpretation 
of ``disturb'' and this interpretation will remain unchanged regardless 
of whether this rule is implemented. This codification of the Service's 
definition of ``disturb'' does not change existing law and, therefore, 
does not impose any new reporting, recordkeeping, or other compliance 
costs on any small entities. Promulgation of the rule and the 
accompanying National Bald Eagle Management Guidelines provides clear 
guidance to all parties that engage in activities that could 
potentially disturb eagles. Improved compliance with existing laws may 
result in additional costs to regulated entities. Conversely, 
promulgation of the rule and guidelines may decrease the costs of 
complying with the BGEPA by reducing uncertainty and enhancing 
resolution of potential conflicts between human activities and eagles.
    Description of steps the Service has taken to minimize the economic 
impact of the rule on small entities. The Service is seeking comments 
on its draft guidelines and definition, including suggestions for ways 
to structure the guidelines to minimize the burden on small entities 
while providing appropriate protection for the bald eagle under the 
BGEPA. The Service is also seeking comments that provide examples of 
effects on small entities.
    Unfunded Mandates Reform Act. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. This 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State government or private entities.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year; i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. Revisions to State 
regulations are not required; codifying the definition of ``disturb'' 
under the BGEPA does not require any future action by State or local 
governments.
    Takings (E.O. 12630). In accordance with Executive Order 12630, the 
rule does not have significant takings implications. This is an 
interpretive rule, defining the statutory term ``disturb'' under the 
BGEPA. The rule promulgates a definition of ``disturb'' that is 
consistent with working definitions currently applied to private 
property, and will be used in conjunction with guidelines that provide 
greater flexibility than existing guidelines used by the Service to 
advise landowners regarding how to avoid disturbing bald eagles. A 
takings implication assessment is not required.
    Federalism (E.O. 13132). In accordance with Executive Order 13132, 
the rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment. This rule will not 
interfere with the States' ability to manage themselves or their funds. 
Defining a term within the prohibitions of BGEPA will not result in 
significant economic impacts because this definition is consistent with 
the meaning of the term as currently interpreted by the Service and the 
States. A Federalism Assessment is not required.
    Civil Justice Reform (E.O. 12988). In accordance with Executive 
Order 12988, the Office of the Solicitor has determined that this rule 
does not unduly burden the judicial system and meets the requirements 
of sections 3(a) and 3(b)(2) of the Order.
    Government-to-Government Relationship with Tribes. In accordance 
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951) and 512 DM 2, we have evaluated potential effects on federally 
recognized Indian tribes and have determined that there are no 
potential effects. This rule will not interfere with Tribes' ability to 
manage themselves or their funds.
    Paperwork Reduction Act. This proposed rule does not require any 
information collection from the public. No OMB control number is 
required.
    National Environmental Policy Act. If warranted, the Service will 
prepare an environmental assessment of this proposed action, pursuant 
to the National Environmental Policy Act. If undertaken, the 
environmental review of this action will be conducted in accordance 
with the requirements of the National Environmental Policy Act of 1969, 
as amended (42 U.S.C. 4321 et seq.), National Environmental Policy Act 
regulations, and policies and procedures of the Service for complying 
with those regulations.
    Clarity of this regulation. Executive Order 12866 requires each 
agency to write regulations that are easy to understand. We invite your 
comments on how to make this rule easier to understand. Send a copy of 
any comments pertaining to how we could make this rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may 
also e-mail comments on the clarity of this rule to: Exsec@ios.doi.gov.

Public Comment Invited

    Interested persons may submit written comments, suggestions, or 
objections regarding the proposed regulations. Correspondence should be 
sent to the address given at the beginning of this proposed rulemaking 
under the ADDRESSES section. Please submit Internet comments to 
BaldEagle--ProposedRule@fws.gov in ASCII file format and avoid the use 
of special characters or any form of encryption. Please also include 
``Attn: RIN 1018-AT94'' in your e-mail subject header, and your full 
name and return address in the body of your message. Please note that 
the Internet address BaldEagle--ProposedRule@fws.gov will be closed at 
the termination of the public comment period.
    We will take into consideration the relevant comments, suggestions, 
or objections that are received by the deadline indicated above in 
DATES. These comments, suggestions, or objections, and any additional 
information received, may lead us to adopt a final rulemaking that 
differs from this proposal.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during normal 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you

[[Page 8268]]

wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

List of Subjects in 50 CFR Part 22

    Exports, Imports, Reporting and recordkeeping requirements, 
Transportation, Wildlife.

    For the reasons described in the preamble, we propose to amend 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 22--EAGLE PERMITS

    1. The authority citation for part 22 continues to read as follows:

    Authority: 16 U.S.C. 668a; 16 U.S.C. 703-712; 16 U.S.C. 1531-
1544.

    2. In Sec.  22.3, revise the heading and introductory paragraph and 
add a definition for ``disturb'' in alphabetical order to read as 
follows:


Sec.  22.3  Definitions.

    In addition to definitions contained in part 10 of this subchapter, 
the following definitions apply within this part 22:
* * * * *
    Disturb means to agitate or bother a bald or golden eagle to the 
degree that interferes with or interrupts normal breeding, feeding, or 
sheltering habits, causing injury, death, or nest abandonment.
* * * * *

    Dated: November 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-1440 Filed 2-15-06; 8:45 am]
BILLING CODE 4310-55-P