Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife, 8238-8251 [06-1442]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 32 (Thursday, February 16, 2006)]
[Proposed Rules]
[Pages 8238-8251]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1442]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF21


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period with new 
information.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period for the proposal to remove the 
bald eagle (Haliaeetus leucocephalus) from the List of Endangered and 
Threatened Wildlife in the lower 48 States of the United States, under 
the Endangered Species Act of 1973 (ESA), as amended. The proposed 
delisting rule for the bald eagle was published on July 6, 1999 (64 FR 
36454). Comments previously submitted on the July 6, 1999, proposed 
rule need not be resubmitted as they have been incorporated into the 
public record as part of this reopening of the comment period, and they 
will be fully considered in the preparation of the final rule. In 
reopening the comment period, we provide new information, respond to 
the comments we received in the proposed rule, and further clarify our 
reasons for proposing to delist the species.
    The best available scientific and commercial data available 
indicates that the bald eagle has recovered. The bald eagle population 
in the lower 48 States has increased from approximately 487 active 
nests in 1963, to an estimated minimum 7,066 breeding pairs today. The 
recovery of the bald eagle is due in part to habitat protection and 
management actions, and the reduction in levels of persistent 
organochlorine pesticides (such as DDT) occurring in the environment. 
This rule will not affect protection provided to the species under the 
Bald and Golden Eagle Protection Act (BGEPA) or the Migratory Bird 
Treaty Act (MBTA).
    In addition, the Bald and Golden Eagle Protection Act will continue 
to provide protection to the bald eagle, if delisting under the ESA is 
found to be warranted. To help clarify the BGEPA protections provided 
to the bald eagle, the Service is also soliciting public comments on 
two related draft bald eagle documents under the BGEPA that are being 
published simultaneously with this proposed delisting rule. First,

[[Page 8239]]

we are publishing a notice of availability and request for public 
comments on draft National Bald Eagle Management Guidelines 
(Guidelines). The Guidelines provide guidance on how to comply with the 
requirements of the BGEPA by avoiding disturbance to bald eagles under 
different land use scenarios. Second, we are publishing a proposed rule 
to add the definition of ``disturb'' to our regulations at 50 CFR 22.3, 
which implement the BGEPA. These two documents are published separately 
in this part of today's Federal Register and include additional 
information about submitting comments on them.

DATES: We must receive comments by May 17, 2006 in order to ensure 
their consideration in our final decision. Any comments that we receive 
after the closing date may not be considered in the final decision on 
this proposal.

ADDRESSES: You may submit comments and other information, identified by 
RIN 1018-AF21, by any of the following methods:
     Mail: Michelle Morgan, Chief, Branch of Recovery and 
Delisting, Endangered Species Program, U.S. Fish and Wildlife Service, 
Headquarters Office, 4401 N. Fairfax Drive, Room 420, Arlington, 
Virginia 22203. Attn: RIN 1018-AF21.
     Hand Delivery/Courier: Same address as above.
     E-mail: baldeagledelisting@fws.gov. Include ``RIN 1018-
AF21'' 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 Solicited'' heading 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.
    Comments and materials received for this rule will be available for 
public inspection, by appointment, during normal business hours at the 
above address after the close of the comment period. Call (703) 358-
2061 to make arrangements.

FOR FURTHER INFORMATION CONTACT: Mary Klee, Biologist, at the 
Headquarters Office (see ADDRESSES section), or via e-mail at Mary--
Klee@fws.gov; telephone (703) 358-2061.
    Additional information is also available on our World Wide Web site 
at https://www.fws.gov/migratorybirds/BaldEagle.htm. Individuals who use 
a telecommunications device for the deaf (TDD) may call the Federal 
Relay Service at 1-800-877-8339 for TTY assistance, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION: 

Background

    Note: Unless otherwise noted with specific citations, the 
following life history information is derived from our five recovery 
plans for the bald eagle and from Gerrard and Bortolotti (1988) (see 
References).

    Current data indicate that the bald eagle in the lower 48 States 
has recovered. The bald eagle population in the lower 48 States has 
increased from approximately 487 active nests in 1963 to an estimated 
minimum 7,066 breeding pairs today. The recovery of the bald eagle is 
due in part to habitat protection and management actions, and the 
reduction in levels of persistent organochlorine pesticides (such as 
DDT) occurring in the environment.
    The bald eagle is well known as our Nation's symbol. Its appearance 
is distinguished in adult birds by its white head and tail contrasting 
against its dark brown body. Its Latin name, Haliaeetus leucocephalus, 
literally means sea eagle with a white head. The bald eagle is the only 
species of sea eagle native to North America, and was first described 
in 1766 as Falco leucocephalus by Linnaeus. This South Carolina 
specimen was later renamed as the southern bald eagle, subspecies 
Haliaeetus leucocephalus leucocephalus (Linnaeus) when Townsend 
identified the northern bald eagle as Haliaeetus leucocephalus 
alascanus in 1897 (Peters 1979). By the time the bald eagle was listed 
throughout the lower 48 States under the ESA, subspecies of the bald 
eagle were no longer recognized by ornithologists (American 
Ornithologists Union 1983).
    The bald eagle is a bird of aquatic ecosystems, frequenting large 
lakes, rivers, estuaries, reservoirs and some coastal habitats. It 
feeds primarily on fish, but waterfowl, gulls, cormorants, and a 
variety of carrion may also be consumed. Adult birds are brown with a 
white head and tail, while the sub-adult's plumage varies. Female bald 
eagles usually weigh 10 to 14 pounds and are larger than the males, 
which usually weigh 8 to 10 pounds.
    Bald eagles usually nest in trees near water, but may use cliffs in 
the southwest United States, and ground nests have been reported from 
Alaska. Nests are usually built in large trees along shorelines, but 
may be up to one-half mile or more from the shoreline. The nest is 
often 4 to 6 feet wide, and after years of use, may weigh 1,000 pounds. 
Adults use the same breeding territory, and often the same nest, year 
after year. They may also use one or more alternate nests within their 
breeding territory.
    Bald eagles are relatively long lived. The longest living bald 
eagle known in the wild was reported near Haines, Alaska, as 28 years 
old (Schempf 1997). It is thought that bald eagles may live even longer 
in captivity. It is presumed that bald eagles mate for life, though if 
a member of a pair is lost, the survivor will find another partner. 
Courtship begins about a month prior to egg-laying, with eagles in 
southern latitudes beginning as early as September, and the northern 
latitudes, as late as May. The nesting season is approximately 6 
months. Eggs are incubated for approximately 35 days, and fledging 
takes place at 11 to 12 weeks old. Parental care may extend 4 to 11 
weeks after fledging (Wood, Collopy, and Sekerak 1998). Between 
fledging and adulthood, the bald eagle's plumage changes from solid 
dark brown as fledglings to include the distinctive white head and tail 
as mature adults at age 4 to 5. The timing and distance of dispersal 
from the breeding territory varies. Some bald eagles stay in the 
general vicinity while some migrate up to hundreds of miles to their 
wintering grounds and remain there for several months. Young eagles may 
wander randomly for years before returning to nest in their natal 
areas. In Arizona, most bald eagles return to within 124 miles of their 
natal areas to breed (Terry Johnson, pers. comm.).
    Eagles seek wintering (non-nesting) areas offering an abundant and 
readily available food supply with suitable night roosts. Night roosts 
typically offer isolation and thermal protection from winds. Northern 
bald eagles winter in areas such as the Upper Mississippi River and 
Great Lakes area. For mid-continent bald eagles, wintering grounds 
include the southern States. Southern bald eagles nest during the 
winter months, and may utilize foraging areas of Chesapeake Bay and 
Yellowstone National Park during the summer.
    The first major decline in the bald eagle population probably began 
in the mid to late 1800s. Widespread shooting for feathers and trophies 
led to extirpation of eagles in some areas. Shooting also reduced part 
of the bald

[[Page 8240]]

eagle's prey base. Waterfowl, shorebirds, and small mammals were also 
reduced in numbers. Carrion treated with strychnine, thallium sulfate, 
and other poisons was used as bait to kill livestock predators and 
ultimately killed many eagles as well. These were the major factors, in 
addition to loss of nesting habitat from forest clearing and 
development, which contributed to a reduction in bald eagle numbers 
through the 1940s.
    In the late 1940s, shortly after World War II, the use of dichloro-
diphenyl-trichloroethane (DDT) and other organochlorine pesticide 
compounds became widespread. Initially, DDT was sprayed extensively 
along coastal and other wetland areas to control mosquitoes (Carson 
1962). Later, it was widely used as a general crop insecticide. 
Dichlorophenyl-dichloroethylene (DDE), the principal metabolic 
breakdown product of DDT, devastated eagle productivity from the 1950s 
through the mid-1970s. DDE accumulated in the fatty tissue of adult 
female bald eagles, and impaired calcium metabolism necessary for 
normal eggshell formation, causing eggshell thinning. Many eggs broke 
during incubation, while others suffered embryonic mortality resulting 
in massive reproductive failure.
    Breeding and productivity surveys have been conducted annually on a 
State-by-State basis since the early 1970s. Data collection methods 
vary, but generally include surveys by aircraft or ground observations 
each year during the breeding season to determine the number of 
occupied breeding areas; a second survey is conducted just before 
fledging to count the number of young produced at the site. Surveys 
continue to be conducted by the Service and cooperators, primarily the 
States and the U.S. Forest Service. However, recently some States have 
discontinued annual surveys. The last rangewide survey was conducted in 
2000. Since that time, more than half of the States have updated their 
bald eagle population figures. Of the 48 States in which the bald eagle 
is listed, 30 States completed surveys in 2003, 5 States completed the 
last survey in 2002, and 9 States completed the last survey in 2001.

Previous Federal Actions

    The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) was passed 
in 1918. It implements various treaties and conventions between the 
U.S. and Canada, Japan, Mexico, and the former Soviet Union for the 
protection of migratory birds. Under the MBTA, taking, killing, or 
possessing migratory birds is unlawful. Unless permitted by 
regulations, the MBTA provides that it is unlawful to pursue, hunt, 
take, capture, or kill; attempt to take, capture or kill; possess, 
offer to or sell, barter, purchase, deliver or cause to be shipped, 
exported, imported, transported, carried or received any migratory 
bird, part, nest, egg or product, manufactured or not.
    The Bald Eagle Protection Act (16 U.S.C. 668-668d) was passed in 
1940, specifically protecting bald eagles in the United States. A 1962 
amendment to this Act included the golden eagle in this protection, and 
the amended statute became known as the Bald and Golden Eagle 
Protection Act (BGEPA). The golden eagle was given protected status 
because of population declines, value to agriculture in the control of 
rodents, and to afford greater protections to bald eagles because of 
the similarity of appearance to juvenile bald eagles. This law 
prohibits the take, possession, sale, purchase, barter, or offering to 
sell, purchase or barter, transport, export or import, of any bald 
eagle, alive or dead, including any part, nest, or egg, unless allowed 
by permit (16 U.S.C. 668(a)). ``Take'' includes pursue, shoot, shoot 
at, poison, wound, kill, capture, trap, collect, molest, or disturb (16 
U.S.C. 668c; 50 CFR 22.3).
    On March 11, 1967 (32 FR 4001), the Secretary of the Interior 
listed bald eagles south of 40 degrees north latitude as endangered 
under the Endangered Species Preservation Act of 1966 (Pub. L. 89-699, 
80 Stat. 926) due to a population decline caused by DDT and other 
factors. Bald eagles north of this line were not included in that 
action because the northern populations had not experienced the same 
threats and population declines and, therefore, were not considered 
endangered in 1967.
    On December 31, 1972, the U.S. Environmental Protection Agency 
canceled and suspended registration of DDT in the United States. The 
following year the Endangered Species Act of 1973 (16 U.S.C. 1531-1544) 
was passed. Among the purposes of the ESA are ``* * * to provide a 
means whereby the ecosystems upon which endangered species and 
threatened species depend may be conserved, and to provide a program 
for the conservation of such endangered and threatened species''. 16 
U.S.C. Id. At 1531(b). The ESA contains provisions for listing, 
protection, and recovery of imperiled species. An endangered species is 
defined under the ESA as a species that is in danger of extinction 
throughout all or a significant portion of its range. A threatened 
species is defined as any species that is likely to become endangered 
within the foreseeable future throughout all or a significant portion 
of its range. The ESA and its implementing regulations prohibit the 
unauthorized take of any listed species. Take is defined as harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
to attempt any of these acts. The ESA also prohibits shipment in 
interstate commerce in the course of commercial activity or sale or 
offer for sale in interstate or foreign commerce.
    In 1978, the Service listed the bald eagle as endangered under the 
ESA in 43 of the contiguous States, and threatened in the States of 
Michigan, Minnesota, Wisconsin, Oregon, and Washington (43 FR 6233, 
February 14, 1978). Sub-specific designations for northern and southern 
eagles were removed.
    The protection available under the ESA and the banning of DDT and 
other harmful chemicals resulted in significant increases in the 
breeding population of bald eagles throughout the lower 48 States. In 
response to the increasing population, we published an advanced notice 
of a proposed rule on February 7, 1990, (55 FR 4209) to reclassify the 
bald eagle from endangered to threatened in the remaining 43 States 
where it had been listed as endangered and retained threatened status 
for the other 5 States. On July 12, 1994, we published a proposed rule 
to accomplish this reclassification (59 FR 35584), and the final rule 
was published on July 12, 1995, (60 FR 36000). Populations of bald 
eagles have continued to increase, and on July 6, 1999, we published a 
proposed rule to delist the bald eagle throughout the lower 48 States 
due to recovery (64 FR 36454).

Bald Eagle Recovery

    Section 4(f) of the ESA directs us to develop and implement 
recovery plans for listed species. In some cases, we appoint experts to 
recovery teams to assist in the preparation of recovery plans. To 
facilitate the recovery of the bald eagle, we divided the lower 48 
States into five recovery regions (Table 1). Separate recovery teams 
composed of experts in each geographic area prepared recovery plans for 
their region. The teams established recovery objectives and criteria 
and identified tasks to achieve those objectives. Coordination meetings 
were held regularly among the five teams to exchange data and discuss 
progress towards recovery.

[[Page 8241]]



               Table 1.--The Five Bald Eagle Recovery Regions and Dates of Approved Recovery Plans
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        Recovery region               Date of recovery plan                           States
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Chesapeake Bay.................  1982, rev. 1990...............  Delaware, Maryland, the southern two-thirds of
                                                                  New Jersey, the eastern half of Pennsylvania,
                                                                  Virginia east of the Blue Ridge Mountains, and
                                                                  the ``panhandle'' of West Virginia.
Pacific........................  1986..........................  California, Idaho, Montana, Nevada, Oregon,
                                                                  Washington, and Wyoming.
Southeastern...................  1984, rev. 1989...............  Alabama, Arkansas, Florida, Georgia, Kentucky,
                                                                  Louisiana, Mississippi, North Carolina, South
                                                                  Carolina, Tennessee, and Eastern Texas.
Southwestern...................  1982..........................  Arizona, the area of California bordering the
                                                                  Lower Colorado River, New Mexico, and Oklahoma
                                                                  and Texas west of the 100th meridian.
Northern States................  1983..........................  All remaining 24 States or parts thereof.
----------------------------------------------------------------------------------------------------------------

Recovery Accomplishments

    The Service and other Federal, State, tribal, and local cooperators 
from across the Nation have funded and carried out many of the tasks 
described within the recovery plans. Annual expenditures for the 
recovery and protection of the bald eagle by public and private 
agencies have exceeded $1 million each year for the past decade 
(Service records). State fish and wildlife agencies have played a vital 
role in restoring bald eagles to areas from which they were extirpated 
or in which their numbers were greatly reduced. These activities 
include conducting annual surveys of breeding and productivity, 
purchasing lands for the protection of bald eagle habitat, 
reintroduction and habitat management programs, and public outreach.
    A partial survey conducted by the National Audubon Society in 1963 
reported on 417 active nests in the lower 48 States, with an average of 
0.59 young produced per nest. Surveys we coordinated in 1974 resulted 
in a population estimate of 791 occupied breeding areas for the lower 
48 States.
    Since the early 1980s, breeding and productivity surveys were 
conducted annually on a State-by-State basis. Data collection methods 
vary somewhat from State to State but generally include surveys by 
aircraft or visits to the site each year during the breeding season to 
determine the number of occupied breeding areas, and a second survey 
just before fledging to count the number of young produced at the site. 
Some States conduct the survey themselves with agency personnel, others 
collate data from partners (including cooperating agencies), while some 
data is collected by personal interviews with reliable sources. Though 
the data collection methods may vary, most States agree that the data 
provided to us represent a minimum number of known, occupied breeding 
areas. The last National bald eagle census was recorded in 2000. Since 
then, a number of States have collected bald eagle data every other 
year or every few years.
    Since the development and implementation of the five recovery 
plans, the bald eagle's population growth has exceeded most of the 
goals established in the various recovery plans. In 1994, our 
cooperators reported about 4,450 nesting pairs with an estimated 
average young of 1.16 young per nest. Compared to the survey conducted 
in 1974, the number of nesting pairs in 1994 in the lower 48 had 
increased by 462 percent.
    Based on the improvements through 1994, including a significant 
increase in numbers of nesting pairs, increased productivity, and 
expanded distribution, we reclassified the bald eagle in 1995 from 
endangered to threatened (60 FR 36000, July 12, 1995). In 1999, we 
proposed the bald eagle for delisting due to recovery (64 FR 36454, 
July 6, 1999).
    Recovery continues to progress at an impressive rate. Between 1989 
and 1999, the bald eagle's nesting population increased at a rate of 8 
percent per year. In 2000, the last year a National census was 
conducted, there were an estimated 6,471 nesting pairs of bald eagles.
    Approximately 60 percent of the lower 48 States have reported 
nesting pair numbers for 2003, totaling 4,044 nesting pairs. We 
estimate a current bald eagle nesting population in the lower 48 States 
to be a minimum of 7,066 nesting pairs, using the numbers last reported 
from the States. Of the 48 States in which the bald eagle is listed, 30 
States completed surveys in 2003, 5 States completed the last survey in 
2002, and 9 States completed the last survey in 2001. This population 
estimate may be conservative given that several States that support 
large bald eagle populations have not continued annual monitoring. 
Therefore, based on the 2000 census data, the current national bald 
eagle population is likely larger than the numbers available to the 
Service.
    The bald eagle has successfully recovered throughout its range. In 
1984, 13 of the lower 48 States had no nesting pairs of bald eagles, 
and 73 percent of the nesting pairs were located within only six 
States: Florida, Wisconsin, Michigan, Minnesota, Washington, and 
Oregon. By 1996, all but two States supported nesting pairs. By 2000, 
these six States had a reduced share of 59 percent of all nesting 
pairs, due to increased nesting in other States. In 2000, there were an 
estimated 6,471 occupied breeding areas.
    In order to maintain a stable population of bald eagles, a minimum 
productivity of 0.7 young per nesting pair per year is necessary 
(Sprunt, et al. 1973). With a national average productivity of at least 
one fledgling per nesting pair per year between 1990 and 2000, the bald 
eagle population has increased and continues to maintain a healthy 
reproductive rate.
    Recovery within the individual recovery regions has also been 
successful. Recovery plans and objectives were designed to guide and 
measure recovery efforts. They are intended to provide targets rather 
than absolute numeric criteria. We discuss bald eagle recovery goals 
for the five regions and how these goals have been attained below.

Regional Recovery Status

    The following is a comparison of the status of the bald eagle in 
each of the five recovery regions against specific objectives in each 
of the five recovery plans:

Chesapeake Recovery Region

    Delisting Goals: Sustain a nesting population of 300-400 pairs with 
average productivity of 1.1 young per nest over 5 years, and 
permanently protect enough habitat to support this nesting population 
and enough roosting and foraging habitat to support population levels 
commensurate with increases throughout the Atlantic Coastal area. 
Habitat protection will be accomplished through landowner cooperation, 
land easements and acquisition, incentive programs, and a continuing 
effort to pursue broad-based

[[Page 8242]]

shoreline protection through State legislation and policy initiatives.
    Achievements: The numeric recovery goals were met in 1992, when the 
number of nesting pairs exceeded 300 nesting pairs, and the population 
has continued to increase, with over 800 nesting pairs reported in 
2003. The average productivity of 1.1 young per nest over 5 years has 
been met, with the average between 1998 and 2003 being 1.19 young per 
nest. The objective of permanently protecting enough habitat to sustain 
these population numbers is close to being achieved. Habitat has been 
protected for approximately 200 nesting pairs. These protected lands 
include, but are not limited to, National Wildlife Refuges, State 
management areas, National Park Service lands, and conservation 
easements. Since 1990, occupied breeding areas for the bald eagle have 
more than doubled in this region, indicating that habitat has not been 
a limiting factor and that potential nesting habitat is still available 
for an increasing population of bald eagles, despite land development 
pressures.
    Approximately 75 percent of the nest sites in the Chesapeake Bay 
area are on private lands. Habitat protection continues to proceed. For 
instance, the State of Maryland, where 40 percent of the nesting pairs 
occur, has established the Chesapeake Bay Critical Area Program. This 
program regulates development and timber harvest operations within 
1,000 feet of the Chesapeake Bay and its tidal tributaries in Maryland. 
Approximately 70 to 80 percent of all eagle nests in Maryland are 
within the Critical Area. Much of the forested areas within the 
Critical Area will be conserved (Therres, 4/19/04 in litt), which will 
likely contribute to the ability to meet the habitat preservation goal 
established in the recovery plan.

Northern States Recovery Region

    Delisting Goals: By the year 2000, establish 1,200 occupied 
breeding areas distributed over a minimum of 16 States with an average 
annual productivity of 1.0 young per occupied nest.
    Achievements: The delisting goal was achieved in 1991, with 1,349 
occupied breeding areas distributed over 20 States. Since 1991, average 
productivity was estimated to be greater than 1.0. In 2000, the 
Northern States Recovery Region had an estimated 2,559 occupied 
breeding areas. When the recovery plan was approved in 1983, nesting 
bald eagles were considered extirpated in Connecticut, Indiana, Kansas, 
Massachusetts, New Hampshire, Nebraska, and Utah, and there was no 
evidence that the species ever had nested in Vermont or Rhode Island. 
As of 2003, only Vermont remains without a nesting pair of bald eagles, 
with some of the aforementioned States having more than 25 active eagle 
nests.

Pacific Recovery Region

    Delisting Goals: A minimum of 800 nesting pairs with an average 
annual productivity of 1.0 fledged young per occupied breeding area, 
and an average success rate for occupied breeding areas of not less 
than 65 percent over a 5-year period. Additionally, breeding population 
goals should be met in at least 80 percent of 30 management zones, and 
wintering populations should be stable or increasing.
    Achievements: The recovery goals have been met, with the numeric 
delisting objectives having been met since 1995. According to the 
Pacific Bald Eagle Recovery Plan, the estimated number of nesting pairs 
for the entire recovery unit in 1985 was 527. However, between 1985 and 
2001 the number of nesting pairs of bald eagles for this recovery unit 
more than tripled, totaling 1,627 nesting pairs. The number of nesting 
pairs exceeded the recovery goal of 800 in 1990, and has continued to 
increase. Productivity has averaged approximately 1.0 young per nesting 
pair since 1990. In 1998, six of the seven Pacific Region States 
reported an average success rate of 75 percent. Distribution of nesting 
pairs among management zones was achieved in 1999, with the Olympic 
Peninsula and Central California Coast meeting their recovery goals. 
The Pacific Recovery Plan identifies 47 management zones with recovery 
goals identified for 37 of the zones. As of 1999, 30 of the 37 targeted 
management zones had met their goals, or 81 percent of the zones. Of 
the 30 zones where target levels have been met, at least 11 have more 
than doubled the established objective. At least three zones where no 
targets were set have one or more nesting pairs of bald eagles.
    Data indicate that the objective of stable to increasing trends in 
wintering populations of bald eagles has been attained on the average 
for the recovery region. Wintering populations have been tracked in the 
Pacific and many other States using the mid-winter bald eagle surveys. 
Wintering populations are difficult to assess because bald eagle 
concentrations depend upon weather and food supply and consequently 
will vary from year to year. With these constraints, the information 
suggests that Washington, Oregon, Idaho, and California have 
experienced an increasing trend in wintering populations of 1.5 to 4.5 
percent, while Nevada and Montana report a decline of about 2.5 percent 
for 1986-2000. As of 2002, the Pacific Coast Region's counts increased 
at 1.6 percent per year, and the Great Basin counts increased 1.3 
percent per year (K. Steenhof, pers. comm.).

Southeastern Recovery Region

    Delisting Goals: The original recovery plan stated that delisting 
would be considered if the recovery trend continues for 5 years after 
reclassification goals are met, and the criteria for delisting would be 
developed when the species is reclassified from endangered to 
threatened. After reclassifying the species to threatened in 1995, the 
Southeastern States Bald Eagle Recovery Team reconvened to consider 
criteria for delisting. The current recommendations of the recovery 
team are to achieve 1,500 occupied breeding areas over the most recent 
3-year period, with average productivity of 0.9 young per occupied 
breeding area over the same 3-year period, and have 8 of 11 States meet 
their nesting and productivity goals.
    Achievements: The delisting goal of 1,500 occupied breeding areas 
over the most recent 3-year period has been met, with over 1,700 pairs 
counted in 2000. Production between 1997 and 2000 averaged 1.24 young 
per occupied territory, thus exceeding the 0.9 goal for the last 
surveyed consecutive 3-year period. Individual population goals for all 
11 States were first attained in 2000, and the population levels have 
continued to increase.

Southwestern Recovery Region

    Delisting Goals: Although the 1982 recovery plan does not have 
delisting goals for the Southwestern Recovery Region, it does outline 
goals for reclassifying the bald eagle from endangered to threatened. 
The recovery plan states that when the reproductive effort has been 
effectively doubled to 10-12 young per year over a 5-year period, and 
the population range has expanded to include one or more river 
drainages in addition to the Salt and Verde River Systems, the 
southwestern bald eagle should be reclassified to threatened. The 1982 
recovery plan indicated that Arizona was the only State in the recovery 
region containing nesting bald eagles, with 42 unverified historic 
nesting territories in the State, 12 occupied territories in the Salt 
and Verde River Systems, and 1 occupied territory along the Colorado 
River.
    Achievements: The goal established in the recovery plan has been 
exceeded. In 2003, 46 occupied breeding areas were reported in New 
Mexico and Arizona alone. In 2004, the State of Arizona had

[[Page 8243]]

41 occupied breeding areas, and productivity was estimated at 0.75 
young per occupied breeding area (Terry Johnson, pers. comm.). The 
number of occupied breeding areas has more than doubled in the past 15 
years.
    The information from the five recovery regions demonstrates that 
bald eagle numbers have greatly increased and productivity has 
substantially improved during the past two decades. The increases have 
continued throughout the species' range since publication of the 
original July 6, 1999, proposed delisting rule and several States, 
notably Wisconsin and Minnesota have changed the status to a species of 
special concern. Currently the Service estimates that more than 7,066 
occupied breeding areas occur in the lower 48 States.

Summary of Comments on the July 6, 1999, Proposed Delisting Rule

    In the July 6, 1999, proposed delisting rule (64 FR 36454), we 
requested that all interested parties provide information and comments 
on the proposal to delist the bald eagle. Announcements of the proposed 
rule were sent to Federal, State, and local officials, Federal and 
State agencies, tribes, interested private citizens, and local 
newspapers and radio stations. We held public hearings in Nashville, 
Tennessee, on September 13, 1999; in Yorktown, Virginia, on September 
21, 1999, and in Phoenix, Arizona, on September 23, 1999.
    We considered all comments provided in writing, received through 
our Web site, and presented orally at the public hearings. The public 
hearings were attended by a total of 137 people, who provided 47 oral 
comments. Among those submitting comments were 12 Federal agencies, 22 
State resource agencies, 41 conservation organizations, 10 academic 
institutions, and 213 private citizens. By recovery region, 132 
comments were received from the Southwest Region, 79 from the 
Chesapeake Bay Region, 35 from the Southeastern Region, 28 from the 
Pacific Region, and 22 from the Northern States Region.
    In addition, five bald eagle experts from the Raptor Research 
Foundation, Inc. volunteered to provide scientific review of the 
proposal to delist the bald eagle and they submitted comments during 
the public review period. The Raptor Research Foundation, Inc. is an 
organization representing approximately 1,200 professional raptor 
biologists and scientists throughout the world.
    We address both the comments of the Raptor Research Foundation's 
five bald eagle experts along with other comments received during the 
public comment period under the respective issues below:
    Issue 1: Habitat protection for the bald eagle will be reduced once 
it is removed from the List of Endangered and Threatened Wildlife. The 
Service should develop a strategy to ensure a core amount of nesting, 
wintering, and foraging habitat is identified and protected and should 
give adequate consideration to the species future management needs.
    Our Response: As further discussed under Factor A below, we 
recognize that the level of habitat protection for the bald eagle will 
be reduced once it is delisted. However, as discussed under Factor D, 
the Federal and State laws will continue to provide adequate protection 
to bald eagles and their core nesting, wintering, and foraging habitat. 
Environmental laws that regulate polluted discharges and fill into 
waterways, wetlands, and associated habitats, will contribute to the 
protection of bald eagle habitat.
    Issue 2: The Service did not adequately enlist the help and advice 
of the bald eagle recovery teams, nor did it update or revise the five 
recovery plans.
    Our Response: Though formal recovery team meetings did not 
reconvene, we worked with, and sought the advice of, many of the 
individual recovery team members throughout the rulemaking process. 
During the rulemaking process, we solicited information from numerous 
other sources including the States; bald eagle working groups; Federal, 
tribal, and university affiliated biologists; and the public.
    Issue 3: Habitat protection objectives in the Chesapeake Bay, 
Northern States and Pacific region recovery plans were not addressed. 
The draft revised population objectives for the Southeastern Recovery 
Region have not been met.
    Our Response: All recovery plans state ``that approved recovery 
plans are subject to modification as dictated by new findings, changes 
in species status, and the completion of recovery tasks.'' The 
objectives identified during the recovery planning process provide a 
guide for measuring the success of recovery, but are not intended to be 
absolute prerequisites, and should not preclude a reclassification or 
delisting action if such action is otherwise warranted.
    The Northern States and Pacific Recovery Plans did not include 
specific habitat protection goals. The Northern States Recovery Plan 
instead focused on site-specific and general habitat management. This 
management approach has contributed to a population level that is more 
than double the number of breeding pairs identified in the delisting 
goals. The Pacific Recovery Plan states that if the breeding population 
goal is reached, we can assume that adequate breeding habitat has been 
secured. The breeding population goal in the Pacific Recovery Plan has 
been achieved. The habitat protection goal of the Chesapeake Bay 
Recovery Plan has not yet been met. However, as discussed earlier, 
between one-half and one-third of the original habitat protection goal 
has been met. The bald eagle population is more than double the 
population goal and continues to increase and has not yet reached 
carrying capacity--indicating that habitat is not a threat to the 
maintenance of the population goal for the foreseeable future. The 
population objectives for the Southeastern Recovery Region were met in 
2000, and numbers in that recovery region continue to increase.
    Issue 4: Once the bald eagle is removed from the List of Endangered 
and Threatened Species, legal protections for the bald eagle and its 
habitat will be reduced or nonexistent. The BGEPA should be 
strengthened. Federal and State law enforcement officials should be 
informed about the BGEPA.
    Our Response: The ESA has been used to provide the primary 
regulatory protection for the bald eagle since the listing of the 
species. However, after delisting occurs, the protections of the BGEPA 
will remain in effect. The BGEPA restrictions and other existing 
regulatory mechanisms are discussed under Factor D. We believe these 
mechanisms are adequate to protect the species if it is delisted, for 
the reasons discussed under Factor D. BGEPA provides indirect habitat 
protection, by protecting the bald eagle itself from disturbance. 
Through the public comment period on this proposed delisting rule, the 
proposed National Bald Eagle Management Guidelines, and the proposed 
definition of ``disturb,'' the States will have the opportunity to 
review and submit any concerns their law enforcement officials may have 
regarding the protections afforded the bald eagle if it is delisted.
    Issue 5: The Service should conduct rigorous long-term monitoring 
after the species is delisted. The condition and security of habitat 
should be assessed every 5 years. The contaminant monitoring outlined 
in the discussion of the monitoring plan in the original proposed rule 
is also inadequate.
    Our Response: We are in the process of updating the post-delisting

[[Page 8244]]

monitoring plan that was included in the 1999 proposed delisting rule 
by addressing comments we received, and we will publish a revised draft 
monitoring plan for public comments in the near future. We will also 
seek peer review of the revised monitoring plan by independent 
scientists. The primary objective of the monitoring plan is to monitor 
effectively, in cooperation with the States, for not less than 5 years 
the status of all species delisted due to recovery. (See ``Monitoring'' 
section).
    Issue 6: The Service should consider establishing minimum criteria 
that might signal the need for relisting.
    Our Response: The Service has not at this time established any 
criteria that might specifically trigger the need to consider 
relisting. As required by section 4(g)(1) of the ESA, the Service will 
monitor the status of the bald eagle for at least five years after 
delisting. If at any time following delisting, information indicates 
that the bald eagle may become threatened or endangered, we will 
evaluate the need to relist the species in accordance with section 4 of 
the ESA.
    Issue 7: The Service should support the U.S. Geological Survey's 
efforts to develop a streamlined protocol for monitoring wintering bald 
eagles in the future as part of the post-delisting monitoring plan 
under the ESA.
    Our Response: We support the U.S. Geological Survey's efforts to 
develop a standardized wintering bald eagle monitoring protocol. 
However, our goal for bald eagle monitoring after delisting is to 
detect significant declines in numbers of breeding pairs in the lower 
48 States, and we will be working in cooperation with the U.S. 
Geological Survey in developing the post-delisting monitoring plan. 
Winter survey results are highly variable; the influx of bald eagles 
from Canada and Alaska can make assessment of the breeding population 
in the lower 48 States extremely difficult. We believe that our most 
reliable and cost-effective approach for detecting population trends in 
the lower 48 States is to focus on nest site occupancy. These nest 
surveys have been conducted since the bald eagle was listed under the 
ESA and form the basis for our determination of recovery. Thus, we 
believe that post-delisting monitoring should focus on nest site 
occupancy. Until the U.S. Geological Survey's wintering bald eagle 
monitoring protocols are completed, the Service will continue working 
with the States to monitor breeding pairs and productivity.
    Issue 8: The annual census of breeding areas and productivity fails 
to provide the demographic information that is necessary to detect 
population trends.
    Our Response: We disagree. Annual bald eagle breeding area and 
productivity surveys to date have been conducted in the majority of the 
lower 48 States for more than 15 years and have provided an extensive 
database on geographic and National population trends. These surveys 
not only monitor performance of known territories, but also document 
recruitment of new territories. The results provide a comprehensive 
database that clearly demonstrates an increasing population trend.
    Issue 9: The Service should initiate shoreline surveys (Chesapeake 
Bay).
    Our Response: We will monitor bald eagles of the Chesapeake Bay 
using the protocols set up in the National post-delisting monitoring 
plan under the ESA. The draft monitoring plan will be announced for 
public comment in the Federal Register at a later date. States may 
choose to conduct more comprehensive monitoring for management purposes 
on a State level.
    Issue 10: Several commenters recommended retaining threatened or 
endangered status for bald eagles in the Southwest and Chesapeake Bay 
Recovery Regions, possibly by designation as distinct population 
segments.
    Our Response: Listing under the ESA in taxonomic terms is limited 
to species, but the term ``species'' is defined by the ESA to include 
any subspecies and any distinct vertebrate population segment. To 
facilitate meeting the intent of the law, we and the National Marine 
Fisheries Service jointly developed a ``Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments under the 
Endangered Species Act'' (DPS Policy) (61 FR 4722; February 7, 1996). 
Three elements are considered regarding the potential recognition of a 
DPS as endangered or threatened. These elements include: discreteness, 
defined as being markedly separated from other populations or separated 
by international boundaries; significance, defined in terms of the 
population segment's importance to its species; and status, defined as 
the population's classification as endangered or threatened.
    We are not aware of threats specific to any part of the eagle's 
range, including the Southwest and Chesapeake Bay Recovery Regions, 
that suggest that the bald eagle is likely to become endangered in any 
particular geographic area. As discussed above, the bald eagle's 
recovery is widespread. Even in the Southwest region, where there has 
historically and is currently limited available habitat, the bald eagle 
has significantly exceeded the reclassification goals outlined tine the 
recovery plan. Therefore, we need not at this time analyze whether any 
particular geographic area would constitute a DPS pursuant to our DPS 
policy.
    Issue 11: Another commenter stated that the Service did not cite 
the papers by Dr. Jim Fraser and his colleagues (Fraser et al., 1996) 
documenting the impact of human population growth on bald eagles and 
indicating a likelihood of extirpation in the Chesapeake Bay area given 
present trends in habitat loss. Therefore, the Service should evaluate 
the rate of habitat loss in Chesapeake Bay before delisting.
    Our Response: The analysis under Factor A has considered the 
subject papers. We are aware of development pressure in the Chesapeake 
Bay area. However, we disagree with Dr. Fraser about the long-term 
prospects for eagle survival in this area. The bald eagle population 
numbers continue to increase at a healthy rate in each of the States 
covered under this recovery region. During the past decade, we have 
added several new National Wildlife Refuges encompassing thousands of 
acres of eagle habitat to the refuge system. Newer refuges at James 
River and Rappahannock in Virginia, and recent expansions at Blackwater 
Refuge in Maryland, are notable examples. In addition, the State of 
Maryland will continue to implement the Chesapeake Bay Critical Area 
Program (discussed under the ``Regional Recovery Status'' section 
above). While any species would benefit by having its entire habitat 
permanently protected, such a level of protection is not required to 
ensure the long-term persistence of the bald eagle in the Chesapeake 
Bay watershed. Bald eagles have not yet reached carrying capacity in 
the Chesapeake Bay recovery unit. Because habitat is not currently 
limiting the species' population growth, it is likely that the species 
will continue to expand into available habitat after delisting.
    We recognize that the bald eagle's continued population expansion 
will likely cause its population to reach the carrying capacity of the 
Chesapeake Bay area. At that point, additional habitat loss may in fact 
cause the population to decline from its future peak level to some 
degree. Moreover, it is conceivable that at some point in the future, 
continued habitat loss could, under certain scenarios, result in the 
eagle being in danger of extirpation in the Chesapeake Bay area. 
However, having reviewed all of the available information regarding 
habitat threats as well as the existing regulatory mechanisms that

[[Page 8245]]

directly or indirectly protect eagle habitat, it is our judgment that 
this outcome is not likely in the foreseeable future.
    Issue 12: Demographic data show that the Arizona bald eagle 
population faces a high likelihood of decline. Mortality of breeding 
adults is excessive. Subadults constitute a higher percentage of 
breeding eagles than is the case for other populations. Fledgling 
mortality is excessive and reproductive rates are below those 
characteristic of other eagle populations. Direct human intervention 
through the Arizona Bald Eagle Nestwatch Program has saved 16 percent 
of all southwestern bald eagle fledglings since 1983; but continuance 
of this program is not assured. Some human intervention will be 
required to maintain this population.
    Our Response: We fully recognize the role that active management of 
the bald eagle has played in the Southwest in achieving recovery. With 
that said, this population has increased since listing in 1978, and may 
have reached its carrying capacity given the extent and nature of 
available nesting habitat, and the difficult conditions under which it 
nests. We will continue to work with other involved agencies to assure 
continuation of existing management and protection regimens, which we 
believe will adequately protect the current nesting population.
    Issue 13: Threats to the continued existence of the bald eagle in 
the southwest are increasing. These threats include habitat loss, river 
dewatering, human encroachment through recreation and development, 
toxic substances, low-flying aircraft, fishing line entanglement, 
grazing, and global warming. The Service has issued a number of 
biological opinions that document the perilous status of southwestern 
bald eagles.
    Our Response: We agree that a number of biological opinions have 
been issued relevant to the Southwest population of bald eagles. 
Section 7 of the ESA requires Federal agencies to ensure that any 
action they fund, authorize, or carry out is not likely to jeopardize 
the continued existence of listed species. Biological opinions analyze 
and document project-level effects to the bald eagle in the context of 
the effects on the recovery region and ultimately to the National 
population. In other words, the potential effects to the southwestern 
or any of the other four populations are considered in terms of whether 
they appreciably reduce the likelihood of both survival and recovery of 
the bald eagle throughout the lower 48 States, not solely for the 
geographic area in which the impacts may occur. In making these 
population level determinations, the biological opinions assess the 
status of the recovery unit populations. The current status of the 
Southwest Recovery Region indicates that population numbers are nearly 
equal to the estimated historical occupancy and are expanding into new 
watersheds.
    Issue 14: No laws other than the ESA provide the necessary 
protection for the continued survival of Southwestern bald eagles. Many 
of the existing laws the Service plans to rely on were in place when 
the bald eagle was listed, thus demonstrating their inadequacy.
    Our Response: The primary reason the bald eagle was listed was due 
to the catastrophic reproductive failure resulting from the widespread 
use of DDT. That major threat has been eliminated since DDT was banned 
in 1972. Though it did take some time after the ban for DDT and DDE 
(its metabolic breakdown product) to dissipate from the food chain, the 
banning of DDT effectively stopped the declining trend. Although the 
protective mechanisms of the ESA will no longer apply if the species is 
delisted, a number of other laws provide protection to the bald eagle 
throughout its range and these protections will continue after 
delisting. Many of the current laws and regulations protecting our 
environment (such as the Clean Water Act of 1972) were enacted about 
the same time as the ESA. We believe that existing laws and 
regulations, including the BGEPA and the Migratory Bird Treaty Act, 
will provide adequate protection from potential threats to maintain a 
recovered population of the bald eagle. (See discussion under Factor D 
of the ``Summary of Factors Affecting the Species'' section of this 
proposed rule.)
    Issue 15: Statements made in the proposed rule that eagles are 
thriving on private land, thus implying that they may be adapting to 
human presence, remain unsubstantiated.
    Our Response: Based on the best available data, we have determined 
that bald eagle response to human presence is highly variable. For 
example, Florida hosts the largest number of nesting pairs of bald 
eagles of any of the lower 48 States, exceeding 1,100 nesting pairs. 
Available data indicate that approximately 66 percent of these nest 
sites occur on private lands. The remaining 34 percent of these nest 
sites occur on publicly owned lands or some form of conservation lands. 
In addition, these Florida eagles have shown remarkable adaptation to 
human presence and activities and continue to thrive in environments 
that, until recently, would have been considered unsuitable habitat.
    Issue 16: The Service should initiate a coordinated research effort 
and seek funding to investigate the ecology of Avian Brain Lesion 
Syndrome in the Southeastern Recovery Region.
    Our Response: This disease, now known as Avian Vacuolar 
Myelinopathy, is being studied and tracked by the National Wildlife 
Health Center in Madison, Wisconsin. This is further discussed under 
``Factor C'' of the Summary of Factors Affecting the Species.
    Issue 17: The 90-day comment period was not adequate to conduct a 
thorough scientific review. The Service should have published a notice 
of intent to delist. The Service held too few public hearings, engaged 
in too little advertisement about them, and did not allow for extension 
of time.
    Our Response: We believe the 90-day comment period for the proposed 
delisting rule, which exceeded the required 60-day comment period, was 
adequate. Prior to the publication of the proposed rule, we solicited 
input from numerous entities, including the States, tribes, and many 
recovery team members. The number of public hearings was based on the 
number of requests we received. We had seven requests for public 
hearings, and offered three hearings at locations close to the 
requesters' home towns. The advertisements regarding the hearings 
followed our standard procedures and included direct coordination with 
the requesters. The Service received a few requests for extensions of 
the comment period; however, the requests did not provide adequate 
justification for an extension. In any case, due to new information we 
have now reopened the public comment period on the proposed delisting.

Summary of Factors Affecting the Species

    Section 4 of the ESA and the regulations (50 CFR part 424) 
promulgated to implement its listing provisions set forth the 
procedures for listing, reclassifying, and delisting species. We may 
list a species if one or more of the five factors listed in Section 
4(a)(1) of the ESA threatens the continued existence of the species. A 
species may be delisted, according to 50 CFR 424.11(d), if the best 
scientific and commercial data available substantiate that the species 
is neither endangered nor threatened for one of the following reasons: 
(1) Extinction; (2) recovery; or (3) original data for classification 
of the species were in error.

[[Page 8246]]

    The bald eagle was proposed for delisting on July 6, 1999. This 
notice further indicates our intent to delist and supply more 
information to the public than was provided previously. Discussion of 
the five listing factors and their application to the recovery of the 
bald eagle are discussed below.
    A. The Present or Threatened Destruction, Modification or 
Curtailment of its Habitat or Range. Nesting, wintering, and foraging 
habitat are essential to the continued survival of the bald eagle. The 
current increasing population trend clearly indicates that habitat is 
not presently limiting the growth of the bald eagle population in the 
lower 48 States, that the population has not yet reached carrying 
capacity in many parts of its range, and that the population will 
continue increasing following delisting. We recognize that the bald 
eagle occupies habitats that are often subject to development or other 
encroachment in some parts of the range. In addition, we acknowledge 
that habitat availability may limit future growth of certain local 
populations. The population will likely increase at a much slower rate 
than what has been documented during the recovery period. In addition, 
population numbers will naturally fluctuate in areas where the habitat 
has reached its carrying capacity.
    Despite these potential limitations, however, numerous factors 
ensure the bald eagle is not likely to become endangered in the 
foreseeable future by loss of suitable habitat or range in any of the 
five recovery regions. First, the bald eagle thrives near a variety of 
different aquatic environments including reservoirs, lakes, rivers, 
estuaries, and the marine environment. These environments exist in each 
of the lower 48 States, and currently, bald eagles occupy these types 
of habitats in 47 out of the 48 States. This tremendous distribution of 
bald eagles throughout the entire United States, combined with the 
eagles' ability to exploit such a wide range of geographic habitat 
settings provides an important buffer against any potential threats to 
the population in each recovery region and as a whole.
    In addition, information suggests that some individual eagles in 
many parts of their range are demonstrating a growing tolerance of 
human activities in proximity to nesting and foraging habitats. Eagles 
in these situations continue to successfully reproduce in settings 
previously considered unsuitable. For example, where our Southeastern 
nesting management guidelines have been followed in Florida, some bald 
eagles pairs have shown a remarkable adaptation to human presences by 
nesting in residential subdivisions, commercial and industrial parks, 
on cell phone towers, and alongside expressways. A common thread 
throughout these urban landscapes is the availability of ample food 
sources such as natural lakes, rivers and ponds, artificial stormwater 
retention ponds, and public landfills. As the eagles begin to reach the 
carrying capacity in local areas and face development or other 
encroachments, it is anticipated that some eagles will adapt to these 
circumstances, while other eagles may not be successful. However, 
because this species utilizes numerous aquatic environments and many 
areas have not yet reached carrying capacity, we expect many of these 
displaced eagles will be able to relocate to more suitable habitats.
    Additionally, there will continue to be numerous bald eagles 
nesting on protected lands, including, but not limited to, National 
Wildlife Refuges, National Parks, National Forests, as well as State 
management areas, and lands owned by private conservation 
organizations. Therefore, a substantial number of bald eagle nesting 
territories will remain protected and provide strongholds throughout 
the range of the species.
    Absent any range-wide, catastrophic impacts such as epidemic 
disease or widespread environmental contamination, habitat loss is not 
likely to become a limiting factor for the recovery regions or the 
national bald eagle population in the foreseeable future, and is not 
likely to rise to the level where the bald eagle meets the definition 
of either threatened or endangered. Given the existence of suitable 
habitat sufficient to support a bald eagle population at a recovered 
level into the foreseeable future, the demonstrated increasing levels 
of tolerance of some local bald eagle populations to increasing levels 
of human disturbance, and continued protections afforded under various 
laws described below under Factor D, the bald eagle is not threatened 
by present or future destruction, modification, or curtailment of its 
habitat or range.
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes. The shooting of bald eagles, and the taking of 
their nests and eggs, was prohibited in 1940 with the Bald Eagle 
Protection Act. Shooting of bald eagles was prohibited again in 1972, 
when eagles were added to the list of birds protected by the MBTA. 
Large-scale mortality from unregulated shooting, like that which 
occurred early in the last century, has been eliminated. Hunter 
education courses include bald eagle identification material to educate 
hunters about bald eagles and the protection that the species is 
afforded. There is currently a low level of illegal shooting and 
commerce in eagle feathers and parts, and it is likely that this level 
will continue in the future. We will continue to enforce the 
restrictions of BGEPA and MBTA.
    There is no legal commercial or recreational use of bald eagles, 
and such uses of bald eagles will remain illegal under various 
statutes, as described under Factor D below. We consider current laws 
and enforcement measures apart from the ESA sufficient to protect the 
bald eagle from illegal activities, including trade. We exercise very 
strict control over the use of bald eagles or their parts for 
scientific, education, and Native American religious activities. To 
respond to the religious needs of Native Americans, we established the 
National Eagle Repository in Commerce City, Colorado, which serves as a 
collection point for dead eagles. As a matter of policy, all Service 
units transfer salvaged bald eagle parts and carcasses to this 
repository. Members of federally recognized tribes can obtain a permit 
from us authorizing them to receive and possess whole eagles, parts, or 
feathers from the repository for religious purposes. After removal from 
protection under the ESA, we will still have the ability to issue 
permits for limited exhibition and education purposes, selected 
research work, and other special purposes, including Native American 
religious use, consistent with Federal regulations implementing the 
BGEPA (50 CFR part 22). We will not issue these permits if they are 
incompatible with the preservation of the bald eagle.
    In summary, there is no current or anticipated future 
overutilization of the bald eagle for commercial, recreational, 
scientific, or educational purposes. Such uses will remain regulated 
under the BGEPA, the Migratory Bird Treaty Act, and Lacey Act.
    C. Disease or Predation. Predation has been documented but it does 
not constitute a significant problem for bald eagle populations.
    Diseases such as avian cholera, avian pox, aspergillosis, 
tuberculosis, and botulism may affect individual bald eagles, as do 
parasites such as the Mexican chicken bug, but are not considered to be 
a significant threat to overall bald eagle numbers. According to the 
National Wildlife Health Center (NWHC) in Madison, Wisconsin, only a 
small percentage of bald eagles submitted to the NWHC between 1985 and 
2003 died of infectious disease. The species' widespread distribution

[[Page 8247]]

generally helps to protect the bald eagle from catastrophic losses due 
to disease.
    Since 1994, it is estimated that 104 bald eagles died of avian 
vacuolar myelinopathy (AVM). Confirmed cases of bald eagle deaths due 
to AVM are recorded in Arkansas, North Carolina, South Carolina, and 
Georgia. At present, this disease continues to be investigated. While a 
toxic agent is suspected as the cause of this condition, cooperative 
efforts are under way to determine the prevalence of this disease and 
its origin. These mortalities can have a localized impact on bald eagle 
populations; however, there is currently no evidence that the overall 
recovery of the species is affected.
    In more recent years, the West Nile Virus (WNV) has affected some 
individual bald eagles. According to NWHC, between January 2002 and 
January 2004, 81 bald eagles were tested for WNV at the Center, and 4 
tested positive. Individual States have also conducted tests on dead 
bald eagles with an overall small percentage testing positive. For 
example, the State of New York annually counts the number of bald 
eagles residing in the State. The count has averaged over 300 
individual bald eagles each year since 2000, with only two confirmed 
cases of WNV. The recovery of the bald eagle should not be affected by 
the small percentage of localized cases of WNV.
    The NWHC is investigating winter mortality to bald eagles along the 
lower Wisconsin River. Unusual mortality to birds wintering in two 
counties along the lower Wisconsin River, Wisconsin, began in 1994-1995 
with the deaths of at least 14 bald eagles. However, no sick bald 
eagles were found at roosts from 10-65