Authorizations Under the Bald and Golden Eagle Protection Act for Take of Eagles, 29075-29084 [E8-11091]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Rules and Regulations]
[Pages 29075-29084]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11091]


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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-AV11


Authorizations Under the Bald and Golden Eagle Protection Act for 
Take of Eagles

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: These final regulations provide two mechanisms to authorize 
take under the Bald and Golden Eagle Protection Act (Eagle Act) by 
certain persons who have been authorized under the Endangered Species 
Act (ESA) to take bald eagles (Haliaeetus leucocephalus) and golden 
eagles (Aquila chrysaetos).

DATES: This rule goes into effect on June 19, 2008.

FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory 
Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax 
Drive, Mailstop 4107, Arlington, VA 22203-1610; or 703-358-2329.

SUPPLEMENTARY INFORMATION:

Background

    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 be 
authorized only under a permit). While the bald eagle was listed under 
the ESA (16 U.S.C. 1531 et seq.), we authorized incidental take of bald 
eagles through take statements under ESA section 7 and through section 
10 incidental take permits (50 CFR 402, Subparts A and B; 50 CFR 
17.22(b) and 17.32(b)). Those authorizations were issued with 
assurances that the Service would exercise enforcement discretion in 
relation to violations of the Eagle Act (16 U.S.C. 668-668d) and the 
Migratory Bird Treaty Act (16 U.S.C. 703-712) (MBTA). Since the bald 
eagle has been removed from the ESA's List of Endangered and Threatened 
Wildlife throughout most of its range (see 72 FR 37345, July 9, 2007 
and 73 FR 23966, May 1, 2008), the prohibitions of the ESA no longer 
apply except to the Sonoran Desert nesting bald eagle population. 
However, the potential for human activities to violate Federal law by 
taking bald eagles (and golden 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 our 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 
were considered likely to incidentally ``take'' (harm or harass) eagles 
under the ESA may also ``take'' eagles under the Eagle Act, as those 
terms have been defined by statute and regulation.
    The ESA provides broad substantive and procedural protections for 
listed species but at the same time allows significant flexibility to 
permit activities that affect listed species. In particular, sections 
7(b)(4) and 10(a)(1)(B) of the ESA provide that we may authorize the 
incidental take of listed wildlife in the course of otherwise lawful 
activities. Nationwide, since 2002, the Service issued an average of 52 
incidental take statements per year that covered anticipated take of 
bald eagles under the ESA's section 7 (50 CFR 402, Subpart B). During 
that same 5-year period, we issued nine incidental take permits that 
included bald eagles under the ESA's section 10(a)(1)(B). A total of 
126 such incidental take permits have been issued for bald eagles and 
12 incidental take permits include golden eagles as covered, non-listed 
species (50 CFR 17.22(b) and 17.32(b)). The statutory and regulatory 
criteria for issuing those ESA authorizations included minimization, 
mitigation, or other conservation measures that also satisfied the 
statutory mandate under that Eagle Act that authorized take must be 
compatible with the preservation of the bald or golden eagle. Our 
practice was to provide assurances in each section 7 incidental take 
statement and section 10 permit that we would not refer the incidental 
take of a bald eagle for prosecution under the Eagle Act, if the take 
was in compliance with the terms and conditions of a section 7(b)(4) 
incidental take statement or the conditions of a section 10(a)(1)(B) 
incidental take permit. \1\ Now that the

[[Page 29076]]

bald eagle is delisted in most of the U.S., new mechanisms are needed 
to address take pursuant to the Eagle Act.
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    \1\ Compliance with the conditions of a section 10(a)(1)(B) 
permit entails compliance with the terms of the associated Habitat 
Conservation Plan and Implementing Agreement (if applicable).
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    The Eagle Act provides that the Secretary of the Interior may 
authorize certain otherwise-prohibited take of eagles 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), 
for take of depredating eagles (50 CFR 22.23), for possession of golden 
eagles for falconry purposes (50 CFR 22.24), and for take of golden 
eagle nests that interfere with resource development or recovery 
operations (50 CFR 22.25).
    We have not previously promulgated permit regulations to implement 
the statutory provision which allows the Secretary to authorize take 
``for the protection of * * * other interests in any particular 
locality.'' This statutory authority accommodates the 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 have received authorization to take eagles under the 
ESA.
    Shortly before delisting the bald eagle, we proposed regulations to 
permit take under the Eagle Act where the take is associated with 
otherwise lawful activities, and to permit removal of eagle nests for 
emergency safety needs (see 72 FR 31141, June 5, 2007). That proposed 
rule also included provisions we are finalizing today under this rule 
to extend Eagle Act take authorizations to persons previously 
authorized to take eagles under the ESA, provided the take occurs in 
compliance with the terms of that ESA authorization. Because the 
authorizations associated with this final rulemaking are categorically 
excluded from the requirement to prepare an environmental assessment 
under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-
4347) under Departmental procedures and we find it is appropriate to 
have these authorizations available at the earliest practical date, we 
have bifurcated the proposed rule and are finalizing the ESA-related 
provisions ahead of the remainder of the proposal. That remainder is 
currently undergoing a NEPA analysis which we intend to complete later 
this year.

Summary of the Rulemaking

    Eagle take that was prohibited under the ESA is, in many instances, 
also prohibited under the Eagle Act. Both statutes define take to 
prohibit killing, wounding, pursuing, shooting, capturing, and 
collecting the species they protect (16 U.S.C. 668c; 16 U.S.C. 
1532(19)). The ESA definition of ``take'' additionally includes the 
terms ``harm'' and ``harass,'' while the Eagle Act includes ``molest or 
disturb'' in its definition of ``take.'' The regulatory definitions of 
``harm,'' ``harass,'' and ``disturb'' differ; however they do overlap 
in several ways, with the result that an action considered likely to 
incidentally take eagles under the ESA may also take eagles under the 
Eagle Act.
    Under this final rule, we extend Eagle Act authorizations to 
holders of existing ESA authorizations as seamlessly as is possible 
under the applicable laws. There are two mechanisms through which these 
new regulations provide Eagle Act authorization. First, the rule 
establishes regulatory provisions under 50 CFR 22.11 to provide take 
authorization under the Eagle Act to ESA section 10(a)(1)(B) permittees 
where the bald eagle is covered in a Habitat Conservation Plan (HCP) or 
the golden eagle is covered as a non-listed species, as long as the 
permittee is in full compliance with the terms and conditions of the 
ESA permit. This provision will also apply to the take of bald eagles 
and golden eagles specifically authorized in any future HCPs, whether 
or not eagles are then listed under the ESA. This provision also 
extends Eagle Act take authorization to ESA permits for Scientific 
Purposes and permits for Enhancement of Propagation or Survival (i.e., 
Recovery permits) issued under ESA section 10(a)(1)(A).
    Second, the rule establishes a new permit category to provide 
expedited Eagle Act permits to entities authorized to take bald eagles 
through section 7 incidental take statements. Permits are not available 
under this new permit for golden eagles because as a non-listed species 
no take of golden eagles was previously authorized under the ESA's 
section 7.
    Theoretically, this new permit category also may be used to extend 
Eagle Act take authorization to take exempted under section 7 of the 
ESA in the future where the bald eagle or golden eagle is protected 
under the ESA (e.g., for take of Sonoran Desert nesting bald eagles, or 
if bald eagles or golden eagles become ESA-listed in any portion of 
their respective ranges). However, in addition to the regulations being 
finalized herein, we intend to finalize regulations later this year to 
establish a new permit that will authorize take that is associated 
with, but not the purpose of, an action (proposed 50 CFR 22.26) (see 72 
FR 31141, June 5, 2007). As part of that subsequent rule, we intend to 
amend the regulations we are promulgating today in a manner to restrict 
their use to section 7 incidental take statements issued prior to the 
date this later rule becomes effective. For any incidental take 
exempted under ESA section 7 that is authorized after the date Sec.  
22.26 becomes effective and that also constitutes take under the Eagle 
Act, the only permit that would be available to provide Eagle Act take 
authorization would be the new permit to be created by a final version 
of 50 CFR 22.26. Although the reasonable and prudent measures and 
associated terms and conditions of section 7 incidental take statements 
satisfy the statutory mandate of the Eagle Act, once a permit becomes 
available to authorize eagle take that is 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. Therefore, except for take authorized through ESA section 10 permits 
(which will 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 a single regulatory authority, 50 CFR 22.26, once it 
becomes available, rather than 50 CFR 22.28. Persons and entities 
permitted under Sec.  22.28 may apply for a permit under Sec.  22.26 
when it becomes available.
    The reason why different authorizing mechanisms are needed to 
extend Eagle Act take authorization to take authorized under ESA 
section 10 versus take exempted under ESA section 7 is that the Eagle 
Act requires that any bald eagle take to be authorized must be (1) 
pursuant to regulations, (2) authorized upon procurement of a permit 
from the Secretary of the Interior, and (3)

[[Page 29077]]

compatible with the preservation of the bald eagle. We now find that 
the previously issued ESA take authorizations are compatible with the 
preservation of the eagle, and we are able to extend Eagle Act take 
authorization to holders of ESA permits through this regulation without 
the need for an additional permit because (1) this regulation satisfies 
the Eagle Act statutory mandate that take be authorized by regulation, 
and (2) a permit to take eagles has been procured from the Secretary of 
the Interior. In contrast, the take authorizations provided under 
section 7 of the ESA were not provided through a permit, and so the 
holders of those authorizations cannot be extended an Eagle Act 
authorization without a permit being procured prior to such taking.

Description of the Rulemaking

New Provisions at 50 CFR 22.11 To Extend Eagle Act Take Authorization 
to Permittees Authorized To Take Eagles Under the ESA

    Section 10(a)(1)(B) of the ESA authorizes incidental take permits 
for activities included in an HCP. One-hundred and twenty-six such 
permits cover bald eagles. Twelve permits authorize incidental take of 
golden eagles for ESA purposes (should the golden eagle be listed in 
the future) by their inclusion as covered non-listed species. Our 
practice was to issue these permits with a statement of enforcement 
discretion from the Service that provided assurances that the Service 
would not refer any take of bald or golden eagles for prosecution under 
the Eagle Act, as long as the take was in full compliance with the 
terms and conditions of the permit and HCP. While the bald eagle was 
protected under the ESA, these assurances also conveyed the Federal 
Government's commitment to make no additional conservation demands of 
permittees who were fully implementing the conservation measures within 
their HCPs.
    Now that the bald eagle has been delisted in most portions of its 
range, all of these ESA permits will continue to provide viable 
authorizations under the ESA, should the affected eagle population 
become listed under the ESA in the future. The only change is that the 
bald eagle became a covered non-listed species under HCPs where it was 
delisted. However, none of these incidental take permits provided 
explicit authorization for take under the Eagle Act.
    The conservation measures required to cover the bald eagle and the 
golden eagle under previously issued ESA incidental take permits (which 
were crafted to safeguard federally listed species, including those 
that may be listed in the future) are ``compatible with the 
preservation of the bald eagle and the golden eagle'' as required by 
the Eagle Act. Therefore, a separate Eagle Act permit is not required 
under this final rule. This rule amends the Eagle Act regulations at 50 
CFR 22.11 to extend Eagle Act authorization for the take authorized 
under the ESA to entities who continue to operate in full compliance 
with the terms and conditions of permits issued under ESA section 10. 
Failure to abide by the section 10 permit requirements that pertain to 
eagles may, however, potentially void the Eagle Act authorization for 
these permits and result in permit revocation.
    This final regulation diverges moderately from what we proposed in 
our June 2007 proposed rule (72 FR 31141). In the proposed rule, we 
suggested that section 10 incidental take permittees whose permits 
covered bald eagles as the only ESA-listed species would need to follow 
the same procedures as persons authorized under section 7 and apply for 
an expedited Eagle Act permit, rather than be covered by the new 
provision we are adding to 50 CFR 22.11. Although more cumbersome, we 
proposed that a new permit would be necessary because we thought that 
the ESA permit might be effectively ``null and void,'' since it no 
longer covered any species listed under the ESA.
    However, after further consideration, we now conclude that a 
single-species HCP does not become null and void if the species is 
delisted, but instead is ineffective for purposes of providing ESA 
authorization as long as the species remains off the List of Endangered 
and Threatened Wildlife. However, should the species be re-listed 
within the tenure of the permit, the authorization would become 
effective (in much the same way that a permit under 50 CFR 17.22(d) 
that covers a Candidate species included in a Candidate Conservation 
Agreement becomes valid if the species becomes listed). Based on this 
approach, the seven section 10 permits that covered bald eagles as the 
only ESA-listed species are not null and void and are eligible to be 
treated in the same manner as section 10 incidental take permits that 
cover bald eagles among additional listed species, because both satisfy 
the Eagle Act permit requirement that a permit be procured before a 
bald eagle may be taken. Therefore the new provision at 50 CFR 22.11 
will cover ESA section 10 incidental take permits that included eagles 
as the only ESA-listed species without the need for issuance of an 
additional Eagle Act permit.
    The new provision at 50 CFR 22.11 also applies to take covered 
under future ESA section 10 permits associated with HCPs for multiple 
species that include bald eagles or golden eagles as covered species, 
whether or not eagles are listed under the ESA.

ESA Section 10(a)(1)(A) Permits

    Take of bald eagles also was authorized under the ESA's section 
10(a)(1)(A) permits for Scientific Purposes and permits for Enhancement 
of Propagation or Survival (i.e., Recovery permits). Many of these 
permits specifically provided take authorization under the Eagle Act in 
addition to the ESA authorization, and those permits will continue to 
serve as valid take authorizations under the Eagle Act. However, some 
section 10(a)(1)(A) permits provided take authority only under the ESA 
and these permits became inactive when the bald eagle was delisted. The 
new provision at Sec.  22.11 will extend Eagle Act take authorization 
to the holders of those permits for the duration of the term of the 
section 10(a)(1)(A) permit, or until the amount or level of take 
authorized has been met.

New Permit Provisions Under 50 CFR 22.28

    As discussed above, the Eagle Act provides that bald eagles may not 
be taken unless a permit is first procured from the Secretary of the 
Interior. The new provisions at Sec.  22.11 that extend Eagle Act 
coverage to holders of section 10 permits do not apply to section 7 
incidental take statements, since those authorizations were not 
provided via issuance of a permit. This final rule establishes a 
process to issue Eagle Act permits to entities that were subject to ESA 
section 7 incidental take authorizations and for which there may 
continue to be a need to take eagles in the future.
    Through the ESA section 7 process, when the Service concludes that 
the agency action will not cause jeopardy or adverse modification, we 
include an incidental take statement that specifies the amount or 
extent of incidental take that will be caused by the agency's action 
and which is exempted from the ESA's take prohibitions. The incidental 
take statement includes reasonable and prudent measures and associated 
terms and conditions to which the agency (or

[[Page 29078]]

any applicant or grantee of the agency) must adhere in order for the 
take exception to apply (see 16 U.S.C. 1536(o)(2)). Those reasonable 
and prudent measures and associated terms and conditions in the 
incidental take statement also satisfy the statutory mandate of the 
Eagle Act that authorized take must be compatible with the preservation 
of the eagle. Therefore, criteria for issuing these expedited permits 
are limited to (1) whether the action agency (or any applicant or 
grantee of the agency) is implementing the action in full compliance 
with the terms and conditions of the ESA section 7 incidental take 
statement with respect to the take of eagles, and (2) whether new 
information is available to indicate that such take is not compatible 
with the preservation of the eagle (e.g., that take was or will be 
exceeded, or the activity will affect eagles in a manner or to an 
extent not previously considered, or the activity will be modified).
    For ESA section 7 take statements issued before the date this rule 
takes effect, we will not refer such take for prosecution under the 
Eagle Act during an interim period that will afford the holders of the 
section 7 take statements a reasonable opportunity to obtain an Eagle 
Act permit, contingent on their remaining in full compliance with the 
terms and conditions of their take statements. For these purposes, 
``reasonable opportunity'' means 1 year after the effective date of 
this rule, i.e., 13 months from the date of publication of this rule in 
the Federal Register. By that date, such applicants need to submit a 
completed application under these regulations. For ESA section 7 take 
statements issued before the date this rule takes effect, only those 
permittees whose activities will continue to take eagles after this 1-
year period need to apply for an Eagle Act permit under these new 
regulations (as long as any take that occurs between August 8, 2007 
(the effective date of the delisting of most bald eagles in the 
coterminous United States), through the end of this 1-year period is in 
accordance with the terms and conditions of the previously granted ESA 
incidental take statement).
    For ESA section 7 incidental take statements issued on or after the 
date this rule takes effect, there will be no conversion period. At the 
present time, this applies only to the population of eagles found in 
the Sonoran Desert region of Arizona. Our aforementioned assurances 
that we will not refer take under the Eagle Act do not apply to take 
statements issued on or after the date this rule takes effect. If take 
of eagles is proposed within an ESA-listed population that we could 
authorize in accordance with the statutory and regulatory requirements 
of both laws, the Service's Migratory Bird and Endangered Species 
programs will coordinate the authorization processes with the goal of 
issuing the Eagle Act and ESA authorizations in a synchronized manner.
    A separate authorization under the Migratory Bird Treaty Act is not 
required. Many impacts authorized under the ESA that will require Eagle 
Act authorization will not ``take'' eagles under the MBTA because that 
statute does not contain a prohibition against harassment or 
disturbance (without injury) of the birds it protects. Therefore, 
activities that harass or disturb an eagle would not require MBTA 
authorization unless the activity also results in injury or some other 
impact prohibited by the MBTA. Even where MBTA take will occur, a 
separate MBTA authorization in addition to the Eagle Act authorization 
is not required because 50 CFR 22.11(a) exempts those who hold Eagle 
Act permits from the requirement to obtain an MBTA permit.
    In extending Eagle Act authorizations to entities authorized to 
take bald eagles under ESA section 7, we will make the permit available 
to either the action agency or the agency's grantee or permittee, or 
both. Either or both the action agency or the third party can request 
an Eagle Act permit under this section.
    In applying for the permit, the applicant must include a written 
certification that he or she is in full compliance with all terms and 
conditions of the ESA incidental take statement. In making our 
determination, we will also review other any other relevant information 
available to us, including, but not limited to, any monitoring and 
progress reports required and submitted in furtherance of the ESA 
incidental take statement.
    We anticipate that most permits will be issued with terms and 
conditions identical to those of the ESA incidental take statement. 
However, based on comments received on the proposed rule, we added 
provisions to the final regulation to address re-evaluation of terms 
and conditions, either at the request of the applicant, or initiated by 
the Service. Persons previously covered under an ESA incidental take 
statement, who apply for take authority under the Eagle Act through 
these regulations, may request a reevaluation from the Service to 
determine whether the conservation measures required under the ESA 
authorization are still necessary to satisfy the Eagle Act standard of 
compatibility with preservation of the bald eagle, or because of 
proposed modifications to the planned activity. However, if the ESA 
incidental take statement applies to eagles that are listed under the 
ESA, the Eagle Act permit cannot and will not remove or annul any terms 
and conditions contained in the ESA incidental take statement. Re-
evaluation of the terms and conditions will likely require more time to 
process the application than when the applicant seeks to continue the 
past terms and conditions. Following issuance of the Eagle Act permit 
(as under most types of permits the Service administers) at any time 
during the permit tenure, the permittee may request amendment of his or 
her permit subject to general permit regulations at 50 CFR part 13.
    We may initiate re-evaluation of terms and conditions under this 
rule if certain criteria that previously would have triggered 
reinitiation of formal consultation are present (see 50 CFR 402.16). 
Those criteria are any of the following: (1) The amount or extent of 
incidental take authorized under the take statement is exceeded; (2) 
new information reveals effects of the action that may affect eagles in 
a manner or to an extent not previously considered; or (3) the activity 
will be modified in a manner that causes effects to eagles not 
previously considered. If any of these factors is extant, depending on 
the specific circumstances, the Service may modify the terms and 
conditions as necessary to ensure that the authorized take is 
compatible with the preservation of the bald eagle or the golden eagle. 
The Service may re-evaluate the terms and conditions either before 
issuing the Eagle Act permit, or at any time during the permit tenure 
that one of the three ``reinitiation criteria'' triggers such re-
evaluation, just as would be the case for the section 7 authorization. 
We do not anticipate that any such review under the Eagle Act would 
result in terms and conditions substantially different from those that 
would result under section 7 of the ESA.
    The permit will be valid until the action that will take eagles, as 
described in the ITS or modified to condition the permit issued under 
this section, is completed, as long as the permittee complies with the 
terms and conditions of the permit, including any modified terms and 
conditions.
    There is no permit application form or processing fee for this 
permit. To apply for a permit under this section, the applicant must 
send to his or her Regional Migratory Bird Permit Office a signed 
statement requesting an Eagle Act permit under this section and

[[Page 29079]]

certifying that he or she is in full compliance with the terms and 
conditions of his or her ESA incidental take statement. If needed and 
applicable, the permit office may request the applicant submit copies 
of any monitoring and progress reports required under the take 
statement.

Revisions to General Permit Conditions at 50 CFR Part 13

    As part of establishing the new permit authorizations under 50 CFR 
22.28, we are amending the list of permits at 50 CFR 13.12 to add this 
new permit type. We are also amending 50 CFR 13.11(d), the nonstandard 
fee schedule, to include this new permit and provide that no processing 
fee will be charged.

Response to Public Comments

    The comments addressed below include only those that pertain to the 
provisions being finalized in this rule. These include comments from 
two national environmental advocacy organizations, two industry 
associations, two law firms on behalf of real estate developers, one 
consultant, two committees representing multiple State natural resource 
agencies, and one Federal reclamation project. The remainder of the 
substantive comments we received in response to the June 5, 2007, 
proposed rule will be addressed in a subsequent rulemaking.
    Comment 1: The criteria for permit issuance should be more 
stringent. Rather than give these ``grandfathering'' authorizations the 
barest of reviews, the Service must establish a system to assess these 
actions in light of the unique requirements of the Eagle Act. Language 
should be added to the sections on ``Applying for a Permit'' and 
``Required Determinations'' to clarify that, before extending Eagle Act 
authorization, the Service will review whether the taking is necessary 
to protect an interest in a particular locality and whether the take is 
compatible with the preservation of the eagle. Before issuing these 
permits, the Service should also consider whether additional permit 
conditions or conservation measures are needed.
    Service response: The take that will be authorized under the Eagle 
Act through these permits has been (or will be) reviewed at least twice 
by the Service. First, at the time the original ESA authorization was 
issued, the Service reviewed the take under either section 7 or section 
10 of the ESA. Prior to issuing a section 7 incidental take statement, 
the Service assesses the effects of the action and issues the take 
statement only if we conclude the take would not jeopardize the 
continued existence of bald eagles. For section 10 permits, the Service 
determines that the taking will not appreciably reduce the likelihood 
of survival or recovery of the species. For each of the ESA 
authorizations we issued, we included a statement that we did not 
intend to bring enforcement action under either the Eagle Act or the 
MBTA for the ESA-authorized take. Though the take was not technically 
authorized under the MBTA or the Eagle Act through the ESA 
authorization, we determined that the ESA conservation goal was 
compatible with the statutory mandate of both Acts. We carefully 
considered the consequences of extending Eagle Act authorization to 
these actions before proposing to do so in our June 5, 2007, proposed 
rule (see 72 FR 31141) and since then, as we examined public input on 
that rule. Our conclusion is that the taking authorized by the ESA 
authorizations is compatible with the preservation of the bald eagle, 
individually and cumulatively.
    However, the authorizations granted under the ESA were themselves 
subject to re-evaluation by the Service under certain limited 
circumstances, and through this final rule, we are extending the same 
criteria that allowed us to revise terms and conditions under the ESA 
authorizations to the Eagle Act authorizations granted herein. For 
section 10 permits, we do this by adding language to the new provision 
at Sec.  22.11 to clarify that the same regulatory provisions that 
applied to section 10(a)(1)(B) permits continue to apply, except that 
the revocation criterion is based on the Eagle Act mandate of 
compatibility with the preservation of the bald eagle or the golden 
eagle, rather than the ESA standard of inconsistency with the criterion 
set forth in 16 U.S.C. 1539(a)(2)(B)(iv). Accordingly, the Service 
cannot require any additional conservation measure for changed or 
unforeseen circumstances than we could have required under the ESA 
permit, but if mutually agreed upon conservation measures cannot assure 
compatibility with the preservation of the bald eagle or the golden 
eagle, the Service may revoke a permit that is determined to be 
incompatible with the preservation of the bald eagle or the golden 
eagle.
    To provide for Service-initiated re-evaluation of the terms and 
conditions of section 7 authorizations, we have added language to the 
final regulations that mirrors the criteria for reinitiation of formal 
consultation under section 7, but is based on the Eagle Act standard of 
compatibility with the preservation of the bald eagle or the golden 
eagle.
    Regarding whether the Service, before issuing each permit, must 
make the determination that take is necessary to protect an interest in 
a particular locality, we believe that extending Eagle Act 
authorization to take that was previously exempted under the ESA is 
necessary to protect the legitimate interests of those members of the 
public, in particular localities, who were proceeding in good faith 
under previously issued ESA authorizations and were complying with all 
required conservation measures of their take statements.
    Comment 2: The regulations should contain an explicit finding that 
issuing Eagle Act permits for previously issued ESA authorizations is 
consistent with the Eagle Act's take authorization provisions at 16 
U.S.C. 668a.
    Service response: We found above that the permits issued under this 
rulemaking are consistent with the Eagle Act. Additionally, based on 
this finding, the final regulations continue to use as the sole 
criterion for permit issuance whether the applicant is implementing the 
action as analyzed in the formal consultation and continues to fully 
comply with the terms and conditions of the previously issued ESA 
authorization.
    Comment 3: The scope of ``take'' under the Eagle Act is far 
narrower than under the ESA. Therefore, the expedited permit processing 
criteria are appropriate.
    Service response: Our conclusion that take previously authorized 
under the ESA is compatible with the preservation of the bald eagle is 
not based on a relative comparison of the two statutes' definitions of 
``take.'' Rather, it is based on the adequacy of the issuance criteria 
for ESA authorizations, including minimization, mitigation, and other 
conservation measures, designed to protect a species classified as 
threatened under the ESA, that would remain as terms and conditions 
under the Eagle Act authorization.
    Comment 4: In the preamble to the proposed rule, the Service stated 
that persons applying under this permit would be given the opportunity 
to ask for a re-evaluation of permit conditions, to ensure that 
permittees are not compelled to undertake measures that would not 
otherwise be required to offset take under the Eagle Act. However, no 
such provisions were included within the proposed regulation itself.
    Service response: We have added specific provisions for requesting 
a re-evaluation of permit conditions to the final rule in two places: 
In Sec.  22.28(c),

[[Page 29080]]

Permit conditions; and in Sec.  22.28(e)(2), Applying for an eagle take 
permit.
    Comment 5: The Service should enact a general permit process 
similar to the U.S. Army Corps of Engineers' section 404(e) permit 
program under the Clean Water Act. The Eagle Act requirement that a 
permit must first be procured before bald eagle take can be authorized 
does not necessarily mean an individual permit is required. Without 
being automatically authorized via a general permit, some people may be 
subjected to criminal and civil penalties because they do not realize 
they need an Eagle Act permit.
    Service response: The general permit program administered by the 
U.S. Army Corps of Engineers (Corps) provides authorization for certain 
types of activities without the landowner or developer having to obtain 
an individual site-specific permit in advance. The Clean Water Act 
specifically authorizes the Corps to issue general permits that are 
exempt from individual, case-by-case review (33 U.S.C. 1344(e)). No 
such provision exists within the Eagle Act, which states that ``bald 
eagles may not be taken for any purpose unless, prior to such taking, a 
permit to do so is procured from the Secretary of the Interior'' (16 
U.S.C 668a). Because of that provision, we can promulgate regulations 
that authorize take of golden eagles without a permit, but not bald 
eagles; a regulation is not sufficient authorization, absent a permit 
from the Department of the Interior to take bald eagles.
    The U.S. Court of Appeals for the District of Columbia Circuit has 
held that the Corps' nationwide general permits meet the statutory 
definition of rules because they are ``legal prescription[s] of general 
and prospective applicability'' Natl. Assn. of Home Builders vs. U.S. 
Army Corps of Engineers, 417 F. 3d 1272, 1284, D.C. Cir. 2005. Thus, if 
we attempted to authorize take of bald eagles with a ``prescription of 
general and prospective applicability'' and without individual permits, 
a reviewing court might find this to be inconsistent with the Eagle 
Act's requirement that a permit be procured prior to taking bald 
eagles. Consequently this final rule continues to require an 
application process, review, and issuance of a permit before take of 
bald eagles may be authorized under the Eagle Act for ESA section 7 
authorizations because they were not provided via a permit from the 
Secretary of the Interior.
    Regarding the issue of liability for unauthorized take, we believe 
that persons who were previously authorized to take eagles under the 
ESA should be at least as aware that most bald eagles were delisted and 
of the need to gain take authorization under the Eagle Act as the 
average citizen who has never had occasion to consider his legal 
responsibilities with regard to eagles.
    Comment 6: There need to be timelines for issuance of the expedited 
permits, i.e., if no action is taken by the Service within 45 days, the 
applicant can conclusively presume that the permit is granted.
    Service response: Regardless of any presumption on the part of the 
applicant, the activity is not authorized under the Eagle Act without a 
permit. We intend to issue these permits expeditiously, and we may 
include permit processing targets for these types of permits in 
forthcoming implementation guidance. However, due to factors not always 
under our control, such as the volume of requests, incomplete 
information provided by applicants, etc., we cannot always meet desired 
targets.
    Comment 7: There should be a finite period of time during which 
people with previously issued incidental take statements must seek 
their conversion to an Eagle Act permit.
    Service response: Elsewhere in the preamble, we have clarified that 
we expect those persons who wish to be able to continue to rely on the 
assurances provided in past ESA section 7 incidental take statements to 
apply for permits under this section within 1 year after this rule 
takes effect (thirteen months from the date of publication in the 
Federal Register). For ESA section 7 take statements issued on or after 
the date this rule takes effect, there will be no conversion period: 
The recipient of the take statement needs immediately, or concurrent 
with the related ESA consultation, to seek a permit under this section 
(until such time as a permit is available under Sec.  22.26). An Eagle 
Act permit is required to authorize take under the Eagle Act regardless 
of whether the take has been exempted under section 7, and our 
aforementioned assurances that we will not refer take under the Eagle 
Act will not be included in incidental take statements issued on or 
after the date this rule is finalized.
    Comment 8: The Service needs to issue an Enforcement Directive from 
the Director to the field providing assurances during the interim 
period that it will not exercise any enforcement. The directive should 
be similar to the February 9, 1996, memorandum from the Director to the 
Regional Directors, which suggested that the Regions include statements 
in ESA incidental take authorizations they issue to the effect that the 
Service would not initiate enforcement actions under the Eagle Act and 
MBTA for the ESA-authorized take of migratory birds and eagles.
    Service response: This comment loses some of its urgency with the 
release of these final regulations. Even so, an ``enforcement 
directive'' that would apply for the next year while applicants undergo 
the Eagle Act permitting process may still be desired. However, we do 
not agree that an internal memorandum wherein the Director transmits 
``recommendations to the Regions as interim guidance,'' as was the case 
with the February 9, 1996, memorandum, would provide greater assurances 
than we have already provided through language contained in four 
separate rulemaking actions (including this one) published in the 
Federal Register.
    Comment 9: Recipients of technical assistance letters that 
authorized activities under the ESA that are inconsistent with the 
National Bald Eagle Management Guidelines (see 72 FR 31156, June 5, 
2007) may be subject to Eagle Act prosecution. Eagle Act permits should 
be expedited for recipients of such technical assistance letters.
    Service response: Technical assistance letters could not and did 
not provide any authorization to take eagles. The only means available 
to gain authorization to take eagles under the ESA was by means of a 
permit issued under section 10 or an incidental take statement issued 
under section 7. The role of technical assistance letters was to inform 
the landowner or project proponent that the Service did not consider 
take likely to occur. Generally we issued these letters after providing 
technical assistance to the project proponent that included recommended 
modifications to the planned activity to minimize the possibility of 
take, and after the project proponent agreed to incorporate the 
measures. Technical assistance letters do not authorize take should it 
occur despite the recommended measures; only a permit or incidental 
take statement could absolve a person of liability for take of eagles. 
In situations where these letters were issued and the activity 
proceeds, there is no Eagle Act violation unless an eagle is disturbed 
or otherwise taken, regardless of whether the activity was consistent 
or not with the National Bald Eagle Management Guidelines.
    If take does occur, the Service is unlikely to prioritize 
enforcement actions against a party that followed the

[[Page 29081]]

Service's written advice (in the form of the technical assistance 
letter) regarding what steps were necessary to avoid taking eagles. 
Furthermore, although take of bald eagles under the Eagle Act can be 
authorized only by permit, it is not our goal to encourage applications 
for permits to cover take of eagles that is in fact very unlikely to 
occur. We believe our conservation mission is best served by helping 
the public reduce the likelihood of take, and to provide permits in 
appropriate circumstances where take is likely (and cannot practicably 
be avoided).
    Comment 10: The Service should issue immediate guidance regarding 
prospective applicants who were in the midst of the HCP process when 
the bald eagle was delisted. The guidance should provide methods and 
standards for applicants to follow pending adoption of final take 
permit rules. Applicants who conform to the process should be given 
written assurances that the Service will not prosecute for eagle take, 
and the final rule should provide a means to convert that assurance 
into a permit.
    Service response: This final rule provides a resolution of the 
issue raised by the commenter for most situations where project 
proponents were in the midst of developing an HCP that covered eagles 
when the bald eagle was delisted. The rule provides Eagle Act 
authorization for eagle take authorized under the ESA, including under 
future ESA section 10 permits.
    However, there are some parties whose uncompleted HCPs were going 
to cover bald eagles but no other ESA-listed species, and they are no 
longer able to obtain a section 10 permit under the ESA for delisted 
eagles and cannot apply for take authorization under the Eagle Act 
until we finalize our proposed Eagle act take permit regulations. We 
recognize the difficult position in which these parties find 
themselves, having expended some effort towards development of HCPs and 
permit conditions for purposes of obtaining take authorization for bald 
eagles under the ESA. The best solution is that we expeditiously 
complete the new permit rule discussed above.
    The difficulty with issuing the type of guidance the commenter 
suggests is that the handful of applicants in this position had reached 
different stages of the process at the time of bald eagle delisting. A 
few had nearly finalized development of appropriate minimization, 
mitigation, and conservation measures, but others had not. Because 
specific measures are needed in each particular situation to ensure 
impacts to eagles will be adequately mitigated, general guidance--other 
than what we provide in the National Bald Eagle Management Guidelines 
(e.g., how to avoid take)--would not be appropriate. For the handful of 
applicants who were engaged in the HCP process and cannot avoid taking 
eagles, we recommend that each such party continue working with our 
Ecological Services Field Office to implement measures that will 
minimize take until a means of Eagle Act authorization becomes 
available. The Service focuses its enforcement resources on 
investigating and prosecuting individuals and companies that take 
migratory birds without regard for the consequences of their actions 
and the law, especially when available conservation measures have not 
been implemented.
    Comment 11: The statement that certain section 10 permits are 
``null and void'' upon delisting should be struck because the 
minimization and mitigation measures are still required. Also, some of 
these permits contain the provision that the bald eagle will be covered 
if re-listed in the future.
    Service response: We addressed this issue in the preamble 
discussion above: We do not consider certain section 10 permits to be 
``null and void'' because eagles were the only listed species they 
covered. Rather, those permits are ``ineffective for purposes of 
providing ESA authorization.'' The commenter is technically incorrect 
in saying that HCPs that covered bald eagles as the only ESA-listed 
species contain the provision that the bald eagle will be covered if 
(delisted and) re-listed in the future. Neither the HCP, nor the 
permit, nor any implementing agreement included that specific 
provision. However, even without such a provision, the result is the 
same: If the bald eagle is re-listed for any reason in the future, we 
would recognize those permits as valid (within the timeframe for which 
the original permit was valid). Therefore, the single-species section 
10 permit is not null and void, and can be treated under this 
rulemaking in the same manner as a section 10 permit associated with a 
multi-species HCP. The validity of the permit for both Eagle Act 
authorization and for future authorization under the ESA continues to 
be predicated on the permittee's compliance with the terms and 
conditions of the ESA permit.
    Furthermore, the commenter is correct in noting that, even while 
the bald eagle remains off the List of Endangered and Threatened 
Wildlife and the single-species permit is ``inactive'' or ``quiescent'' 
for ESA purposes, if post-delisting take of bald eagles occurs, the 
permittee remains responsible for required minimization or mitigation 
measures that pertain to bald eagles in order to avoid liability under 
the Eagle Act.

Required Determinations

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211, which 
addresses 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)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever a Federal agency publishes a notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions) (5 U.S.C. 601 et 
seq.). However, no regulatory flexibility analysis is required if the 
head of an agency certifies that the rule would not have a significant 
economic impact on a substantial number of small entities. Thus, for a 
regulatory flexibility analysis to be required, impacts must exceed a

[[Page 29082]]

threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA 
amended the Regulatory Flexibility Act to require Federal agencies to 
provide a statement of the factual basis for certifying that a rule 
would not have a significant economic impact on a substantial number of 
small entities.
    This rule may benefit a variety of small businesses, including real 
estate developers and brokers; construction companies; forestry and 
logging, farming, and ranching operations; tourism companies; utility 
companies; and others who were previously granted authorization to 
incidentally take eagles under the ESA. However, the benefits are more 
legal in nature than economic because this rule provides legal coverage 
under the Eagle Act for activities that are underway and proceeding 
under assurances provided by the Service that it would use enforcement 
discretion with regard to the Eagle Act as long as the activities are 
conducted under the terms and conditions of ESA authorizations. The 
Eagle Act authorizations will apply to the same activities for which 
these assurances had been provided a connection with an ESA 
authorization. Thus, additional economic benefits will not be 
significant.
    The Department of the Interior certifies that this rule would 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.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Will not have an annual effect on the economy of $100 million or 
more. The principal economic effect of the rule would be to remove 
uncertainty and facilitate transactions related to activities that may 
incidentally take bald eagles, where the take had been authorized until 
the bald eagle was delisted under the ESA. Small entities that 
benefited from the issuance of permits under the ESA will continue to 
benefit from permits issued under this rule.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The permits issued under this 
regulation will not significantly affect costs or prices in any sector 
of the economy. The rule provides regulatory assurances under the Eagle 
Act for take that had previously been authorized under the ESA.
    c. Will not have a significant adverse effect on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. This 
regulation establishes a mechanism to permit effects from activities 
within the United States that were already authorized under a different 
statute. Therefore, there is no anticipated negative economic effect to 
small businesses resulting from this rule.

Unfunded Mandates Reform Act

    A statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
    a. This rule is not a significant regulatory action under the 
Unfunded Mandates Reform Act. A Small Government Agency Plan is not 
required. The permit regulations that are established through this 
rulemaking will not require actions on the part of small governments.
    b. This rule is not a significant regulatory action under the 
Unfunded Mandates Reform Act. This rule will not impose an unfunded 
mandate on State, local, or tribal governments or the private sector of 
more than $100 million per year.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. This rule will affect some private 
property insofar as it provides some land owners Eagle Act 
authorization for activities on their property that might incidentally 
take bald eagles, where the take was or is authorized under the ESA. 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. Changes in the regulations 
governing the take of eagles should not result in significant economic 
impacts because this rule allows for the continuation of a current 
activity (take of eagles) albeit under a different statute (shifting 
from the ESA to the Eagle Act). 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. This rule will not 
affect the process by which members of federally recognized tribes 
apply for and receive permits to possess eagle parts from the National 
Eagle Repository or permits to take eagles from the wild for religious 
purposes.

Paperwork Reduction Act

    This rule does not contain new information collection under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Any information we 
collect will be in the form of a certification and is therefore exempt 
from Paperwork Reduction Act requirements. We may not collect, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB number.

National Environmental Policy Act

    We have considered this action and determined that we do not need 
to prepare an environmental assessment (EA) or environmental impact 
statement (EIS) in association with the National Environmental Policy 
Act of 1969 because this action is categorically excluded from such 
analysis under the Department of the Interior's NEPA procedures at 516 
DM 8.5(A)(1), which covers changes or amendments to an approved action 
when such changes have no or minor potential environmental impact. The 
authorizations provided under these regulations are ``approved 
actions'' and are being extended with no changes in most cases. If any 
permits are issued under these regulations with changed permit 
conditions (at the request of the holder of an ESA authorization) and 
the changed conditions have the potential for a more than minor impact, 
the permits will be subject to the NEPA assessment on a case-by-case 
basis before they are issued. Therefore, relative to those permits, 
this action is

[[Page 29083]]

categorically excluded under 516 DM 2, Appendix 1.1.

Endangered Species Act Considerations

    Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as 
amended (16 U.S.C. 1531 et seq.), requires all Federal agencies to 
``insure that any action authorized, funded, or carried out * * * is 
not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of [critical] habitat.'' This rule provides authorizations 
for impacts that were already assessed under section 7 of the ESA and 
maintains the requirement to comply with the conservation measures 
prescribed under those assessments for listed species. This rule has no 
impact on endangered or threatened species.

List of Subjects

50 CFR Part 13

    Administrative practice and procedure, Exports, Fish, Imports, 
Plants, Reporting and recordkeeping requirements, Transportation, 
Wildlife.

50 CFR Part 22

    Birds, Exports, Imports, Migratory birds, Reporting and 
recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

0
For the reasons described in the preamble, we amend subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 13--[AMENDED]

0
1. The authority citation for part 13 continues to read as follows:

    Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1374(g), 1382, 
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 
1202; 31 U.S.C. 9701.


0
2. Amend Sec.  13.11(d)(4) by adding an entry in the table as the last 
entry under ``Bald and Golden Eagle Protection Act'', to read as 
follows:


Sec.  13.11  Application procedures.

* * * * *
    (d) * * *
    (4) User fees. * * *

----------------------------------------------------------------------------------------------------------------
                Type of permit                            CFR citation                  Fee        Amendment fee
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                 * * * * * * *
                                      Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Eagle Take--Exempted under ESA...............  50 CFR 22........................
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  13.12(b) by adding to the table the following entry in 
numerical order by section number under ``Eagle permits'' to read as 
follows:


Sec.  13.12  General information requirements on applications for 
permits.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                        Type of permit                          Section
------------------------------------------------------------------------
 
                                * * * * *
Eagle permits:
 
                                * * * * *
Eagle Take--Exempted under ESA...............................      22.28
 
                                * * * * *
------------------------------------------------------------------------

PART 22--[AMENDED]

0
4. The authority citation for part 22 is revised to read as follows:

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


0
5. Amend Sec.  22.1 by revising the first sentence to read as follows:


Sec.  22.1  What is the purpose of this part?

    This part controls the taking, possession, and transportation 
within the United States of bald eagles (Haliaeetus leucocephalus) and 
golden eagles (Aquila chrysaetos) and their parts, nests, and eggs for 
scientific, educational, and depredation control purposes; for the 
religious purposes of American Indian tribes; and to protect other 
interests in a particular locality. * * *

0
6. Amend Sec.  22.11 as follows:
0
a. By revising the first sentence of the introductory text to read as 
set forth below;
0
b. By redesignating paragraphs (a), (b), and (c) as paragraphs (b), 
(c), and (d); and
0
c. By adding a new paragraph (a) to read as set forth below.


Sec.  22.11  What is the relationship to other permit requirements?

    You may not take, possess, or transport any bald eagle (Haliaeetus 
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts, 
nests, or eggs of such birds, except as allowed by a valid permit 
issued under this part, 50 CFR part 13, 50 CFR part 17, and/or 50 CFR 
part 21 as provided by Sec.  21.2, or authorized under a depredation 
order issued under subpart D of this part. * * *
    (a) A permit that covers take of bald eagles or golden eagles under 
50 CFR part 17 for purposes of providing prospective or current ESA 
authorization constitutes a valid permit issued under this part for any 
take authorized under the permit issued under part 17 as long as the 
permittee is in full compliance with the terms and conditions of the 
permit issued under part 17. The provisions of part 17 that originally 
applied will apply for purposes of the Eagle Act authorization, except 
that the criterion for revocation of the permit is that the activity is 
incompatible with the preservation of the bald eagle or the golden 
eagle rather than inconsistent with the criterion set forth in 16 
U.S.C. 1539(a)(2)(B)(iv).
* * * * *

0
7. Amend part 22, subpart C, by adding new Sec.  22.26, Sec.  22.27 and 
Sec.  22.28 to read as follows:

Subpart C--Eagle Permits

* * * * *

[[Page 29084]]

Sec.  22.26  [Reserved]


Sec.  22.27  [Reserved]


Sec.  22.28  Permits for bald eagle take exempted under the Endangered 
Species Act.

    (a) Purpose and scope. This permit authorizes take of bald eagles 
(Haliaeetus leucocephalus) in compliance with the terms and conditions 
of a section 7 incidental take statement under the Endangered Species 
Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.; 50 CFR 402, 
Subpart B).
    (b) Issuance Criteria. Before issuing you a permit under this 
section, we must find that you are in full compliance with the terms 
and conditions contained in the applicable ESA incidental take 
statement for take of eagles, based on your certification and any other 
relevant information available to us, including, but not limited to, 
monitoring or progress reports required pursuant to your incidental 
take statement. The terms and conditions of the Eagle Act permit under 
this section, including any modified terms and conditions, must be 
compatible with the preservation of the bald eagle.
    (c) Permit conditions. (1) You must comply with all terms and 
conditions of the incidental take statement issued under section 7 of 
the ESA, or modified measures specified in the terms of your permit 
issued under this section. At permit issuance or at any time during its 
tenure, the Service may modify the terms and conditions that were 
included in your ESA incidental take statement, based on one or more of 
the following factors:
    (i) You requested and received modified measures because some of 
the requirements for take authorization under the ESA were not 
necessary for take authorization under the Eagle A