Eagle Permits; Take Necessary To Protect Interests in Particular Localities, 46836-46879 [E9-21589]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 175 (Friday, September 11, 2009)]
[Rules and Regulations]
[Pages 46836-46879]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21589]



[[Page 46835]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Parts 13 and 22



Eagle Permits; Take Necessary To Protect Interests in Particular 
Localities; Final Rules

Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / 
Rules and Regulations

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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-AV81


Eagle Permits; Take Necessary To Protect Interests in Particular 
Localities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: In conjunction with release of a final environmental 
assessment of this action, the U.S. Fish and Wildlife Service (``we'' 
or ``the Service'') is finalizing permit regulations to authorize 
limited take of bald eagles (Haliaeetus leucocephalus) and golden 
eagles (Aquila chrysaetos) under the Bald and Golden Eagle Protection 
Act (Eagle Act), where the take to be authorized is associated with 
otherwise lawful activities. These regulations also establish permit 
provisions for intentional take of eagle nests under particular, 
limited circumstances.

DATES: This rule goes into effect on November 10, 2009.

FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory 
Bird Management, via e-mail at eliza_savage@fws.gov; telephone: 703-
358-2329; or U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 
Mailstop 4107, Arlington, Virginia 22203-1610.

SUPPLEMENTARY INFORMATION:

Background

    These final regulations authorize the limited take of bald eagles 
and golden eagles under the Bald and Golden Eagle Protection Act (Eagle 
Act) (16 U.S.C. 668-668d), where the take to be authorized is 
associated with otherwise lawful activities. These regulations also 
establish permit provisions for intentional take of eagle nests where 
necessary to ensure public health and safety and in other limited 
circumstances. We proposed these regulations on June 5, 2007 (72 FR 
31141) and provided a 90-day public comment period, which closed on 
September 4, 2007. The Service received approximately 21,500 comments, 
about 21,400 of which are essentially identical. Thirty-five 
respondents provided substantive input that was helpful in crafting 
final regulations. The 35 respondents consisted of: one Federal agency, 
three tribes, six State conservation agencies, four flyway committees 
(associations of State conservation agencies), one State department of 
transportation, five environmental non-governmental organizations 
(NGOs), four industry associations, three law firms/consultants on 
behalf of Florida development companies, two power companies, one 
Federal reclamation project, one airport, three rail transportation 
companies (commenting together), and three private citizens.
    We released a draft environmental assessment (DEA) of the action on 
August 14, 2008 (73 FR 47574) and re-opened the public comment period 
on the proposed rule with some revisions noted in the August 14 Federal 
Register notice. During that 30-day comment period, we received 58 
comments from: one airport, three electric utilities, three Federal 
agencies, ten individuals (non-tribal), five industry associations, 
nine NGOs, one conglomeration of railroad companies, 13 State agencies, 
three flyway committees, one transportation association, three Native 
American tribal members one tribal Department of Natural Resources, 
three tribes, and two confederations of tribes.
    Based on public comment received on the June 5, 2007 proposed rule, 
new information compiled through the process of drafting the DEA, and 
public comment on the DEA and re-opened rule, we developed this final 
rule, the final environmental impact assessment (FEA), and a Finding of 
No Significant Impact. Along with a variety of small changes, this 
final rule contains the following significant additions and revisions 
from the June 5, 2007, proposed rule:
     The rule was split into two rules to be finalized 
separately from one another. The original proposal to extend (or 
``grandfather'') Eagle Act take authorization to take previously 
authorized under the Endangered Species Act (ESA) (16 U.S.C. 1531 et 
seq.) has been separated from the remainder of the provisions in order 
to finalize the ``grandfathering'' provisions more expeditiously. Those 
provisions were published as a final rule on May 20, 2008 (73 FR 
29075).
     We modified our interpretation (provided in the June 5, 
2007, proposed rule) of the statutory mandate that permitted take be 
``compatible with the preservation of the bald eagle or the golden 
eagle.'' In the original proposal, we proposed to use the standard that 
regional and national eagle populations not decline at a rate greater 
than 0.54% annually. In this final rule, we interpret the 
``preservation'' standard to allow actions that are consistent with the 
goal of stable or increasing breeding populations.
     The rule includes new issuance criteria to ensure that, 
except for safety emergencies, Native American religious needs are 
given first priority if requests for eagle take permits exceed take 
thresholds that are compatible with the preservation of the bald eagle 
or the golden eagle.
     The rule no longer provides different issuance criteria 
for lethal versus non-lethal take. Rather, it contains separate 
provisions for programmatic take versus individual instances of take.
     We amend the existing Eagle Depredation Permit regulations 
at 50 CFR 22.23 to extend permit tenure from 90 days to up to 5 years 
for purposes of hazing eagles. The purpose of these revisions is to 
enable issuance of permits that combine programmatic authorizations 
provided under Sec.  22.23 and the regulations in this final rule. We 
are also taking the opportunity to revise terminology throughout Sec.  
22.23 to clarify that we can issue permits under that section to 
prevent or resolve safety emergencies as well as to protect agriculture 
and wildlife.
     The rule expands (from the June 2007 proposed rule) the 
purposes for which eagle nests may be taken to include take necessary 
to ensure public health and safety. The proposed rule limited nest 
removal to emergencies where human or eagle safety was imminently 
threatened.
     Nest take permits may be issued for projects that will 
provide a net benefit to eagles (including projects where the net 
benefit is the result of compensatory mitigation measures).
     Permits may also be issued to take eagle nests built on 
human-engineered structures where the nest interferes with the intended 
use of the structure.
     The rule redefines some terms and includes new definitions 
for a number of additional terms used in the regulations.
    The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) 
(Eagle Act) prohibits the take of bald eagles and golden eagles unless 
pursuant to regulations (and in the case of bald eagles, take can only 
be authorized under a permit). While the bald eagle was listed under 
the ESA, authorizations for incidental take of bald eagles were granted 
through the ESA's section 10 incidental take permits and ESA's section 
7 incidental take statements, both of which were issued with assurances 
that the Service would exercise enforcement discretion in relation to 
violations of the Eagle Act and Migratory Bird Treaty Act (MBTA) (16 
U.S.C. 703-712). Upon delisting, all

[[Page 46837]]

prohibitions contained in the ESA, such as those that prescribe the 
take of bald eagles, no longer apply. However, the potential for human 
activities to violate Federal law by taking eagles remains under the 
prohibitions of the Eagle Act and the MBTA. The Eagle Act defines the 
``take'' of an eagle to include a broad range of actions: ``pursue, 
shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest 
or disturb.'' ``Disturb'' is defined in regulations at 50 CFR 22.3 as: 
``to agitate or bother a bald or golden eagle to a degree that causes, 
or is likely to cause, based on the best scientific information 
available, (1) injury to an eagle, (2) a decrease in its productivity, 
by substantially interfering with normal breeding, feeding, or 
sheltering behavior, or (3) nest abandonment, by substantially 
interfering with normal breeding, feeding, or sheltering behavior.''
    Many actions that are considered likely to incidentally take (harm 
or harass) eagles under the ESA will also disturb or otherwise take 
eagles under the Eagle Act. Until now, there was no regulatory 
mechanism in place under the Eagle Act to permit take of bald or golden 
eagles comparable to incidental take permits under the ESA. This rule 
adds a new section at 50 CFR 22.26 to authorize the issuance of permits 
to take bald eagles and golden eagles on a limited basis. The 
regulations are applicable to golden eagles as well as bald eagles. We 
will authorize take of bald or golden eagles only if we determine that 
the take (1) is compatible with the preservation of the bald eagle and 
the golden eagle and (2) cannot practicably be avoided. For purposes of 
these regulations, ``compatible with the preservation of the bald eagle 
or the golden eagle'' means ``consistent with the goal of stable or 
increasing breeding populations.'' Although the biologically-based take 
thresholds for permitting under these regulations will be based on 
regional populations (as explained below and in more detail in the 
FEA), we will also consider other factors, such as cultural 
significance, that may warrant protection of smaller and/or isolated 
populations within a region.
    We are adding a second new section at 50 CFR 22.27 to authorize the 
removal of bald eagle and golden eagle nests where (1) necessary to 
alleviate a safety hazard to people or eagles, (2) necessary to ensure 
public health and safety, (3) the nest prevents the use of a human-
engineered structure, or (4) the activity, or mitigation for the 
activity, will provide a net benefit to eagles. We are also 
promulgating new definitions under the Eagle Act to clarify terms used 
in the permit regulations. Permit issuance under Sec.  22.26 and Sec.  
22.27 will be governed by the permit provisions presently in 50 CFR 
parts 13 and 22, and new provisions we are finalizing as Sec.  22.26 
and Sec.  22.27.
    In our June 5, 2007, proposed rule, we also proposed certain 
provisions to extend Eagle Act authorizations to persons previously 
granted authorization to take eagles under the ESA. We split the 
rulemaking into two separate rules and finalized the ESA-related 
provisions separately on May 20, 2008 (73 FR 29075).
    Most rules take effect 30 days after Federal Register publication; 
however, more time is needed to work out important details about how 
this program will be implemented. Therefore this rule has an effective 
date of 60 days after publication in the Federal Register. We are 
drafting implementation guidance, and will release it for public notice 
and comment before officially adopting it. Although the implementation 
guidance will not be finalized by the rule's effective date, the extra 
30 days will help promote consistency in the initial permit 
administration, and we can begin issuing permits using the draft 
guidance.

History

    On August 8, 2007, the bald eagle was removed from the List of 
Threatened and Endangered Wildlife (72 FR 37345, July 9, 2007). The 
final delisting rule also constituted our final decision that the 
Sonoran Desert population of bald eagles did not qualify as a distinct 
population segment (DPS), and was therefore not a listable entity under 
the ESA. Our finding on the status of the Sonoran Desert population was 
challenged in court. A March 5, 2008, ruling by the U.S. District Court 
for the District of Arizona (Center for Biological Diversity v. 
Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)) ruled in favor of the 
plaintiffs. As a result of the court order, we published two documents 
in the Federal Register. First, on May 1, 2008, we published a final 
rule reinstating ESA threatened status for bald eagles in the Sonoran 
Desert area of central Arizona (73 FR 23966). The final rule also 
included a map showing the geographic area where bald eagles are 
protected as a threatened species. Second, on May 20, 2008, we 
published a notice initiating a status review for bald eagles in the 
Sonoran Desert area of central Arizona (73 FR 29096). Once the status 
review is completed, we will issue a 12-month finding on whether 
listing these bald eagles as a DPS under the ESA is warranted, and if 
so, whether that DPS should be listed as threatened or endangered.
    We estimate the current number of breeding pairs in the 48 
contiguous States to be over 9,700. Bald eagles were never listed as 
threatened or endangered in Alaska, where we currently estimate bald 
eagles to number between 50,000 and 70,000 birds, including 
approximately 15,000 breeding pairs. Bald eagles do not occur in 
Hawaii.
    Under sections 7(b)(4) and 10(a)(1)(B) of the ESA, we may authorize 
the incidental take of listed wildlife that occurs in the course of 
otherwise lawful activities. Thus, while the bald eagle was listed 
under the ESA in the lower 48 States (and where it is still listed, 
i.e., the Sonoran Desert area of central Arizona), two mechanisms were 
available to authorize take that was associated with, but not the 
purpose of, a human activity. Eagle take that was prohibited under the 
ESA is, in many instances, also prohibited under the Eagle Act. Now 
that the bald eagle is delisted (except for the Sonoran Desert 
population), a mechanism is needed to authorize take of bald eagles 
pursuant to the Eagle Act. The mechanism should also be available to 
authorize take of golden eagles, which were never listed as threatened 
or endangered under the ESA, as long as it is crafted with sufficient 
safeguards to ensure the preservation of both species.
    The Eagle Act provides that the Secretary of the Interior may 
authorize certain otherwise prohibited activities through promulgation 
of regulations. The Secretary is authorized to prescribe regulations 
permitting the ``taking, possession, and transportation of [bald or 
golden eagles] . . . for the scientific or exhibition purposes of 
public museums, scientific societies, and zoological parks, or for the 
religious purposes of Indian tribes, or . . . for the protection of 
wildlife or of agricultural or other interests in any particular 
locality,'' provided such permits are ``compatible with the 
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a). 
In accordance with this authority, the Secretary has previously 
promulgated Eagle Act permit regulations for scientific and exhibition 
purposes (50 CFR 22.21), for Indian religious purposes (50 CFR 22.22), 
to take depredating eagles (50 CFR 22.23), to possess golden eagles for 
falconry (50 CFR 22.24), and for the take of golden eagle nests that 
interfere with resource development or recovery operations (50 CFR 
22.25). This rulemaking establishes permit regulations to authorize 
eagle take ``for the protection of . . . other interests in any 
particular locality.'' This statutory language accommodates a

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broad spectrum of public and private interests (such as utility 
infrastructure development and maintenance, road construction, 
operation of airports, commercial or residential construction, resource 
recovery, recreational use, etc.) that might ``take'' eagles as defined 
under the Eagle Act.
    In accordance with the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), we have prepared a final environmental assessment (FEA) 
of this action. You can obtain a copy of the FEA from https://www.fws.gov/migratorybirds/baldeagle.htm.

Description of the Rulemaking

Take Permit Regulations Under 50 CFR 22.26.

    We promulgate a new permit regulation under the authority of the 
Eagle Act for the limited take of bald eagles and golden eagles ``for 
the protection of . . . other interests in any particular locality'' 
where the take is compatible with the preservation of the bald eagle 
and the golden eagle, is associated with and not the purpose of an 
otherwise lawful activity, and cannot practicably be avoided. 
``Practicable'' in this context means ``capable of being done after 
taking into consideration, relative to the magnitude of the impacts to 
eagles (1) the cost of remedy compared to proponent resources; (2) 
existing technology; and (3) logistics in light of overall project 
purposes.''
    We anticipate that permits issued under this regulation will 
usually authorize take that occurs in the form of disturbance; however, 
in some limited cases, a permit may authorize lethal take that results 
from but is not the purpose of an otherwise lawful activity. 
Programmatic take (take that is recurring and not in a specific, 
identifiable timeframe and/or location) will be authorized only where 
it is unavoidable despite implementation of comprehensive measures 
developed in cooperation with the Service to reduce the take below 
current levels (see discussion below, under ``Programmatic permits''). 
This type of authorization can be extended to industries, such as 
electric utilities or transportation industries, that currently take 
eagles in the course of otherwise lawful activities but who can work 
with the Service to develop and implement additional, exceptionally 
comprehensive measures to reduce take to the level where it is 
essentially unavoidable. A programmatic take permit could also be 
issued to State and Federal agencies that take eagles in the course of 
their activities (e.g., construction and maintenance of roads and other 
critical infrastructure) if they adopt such advanced conservation 
measures.
    Purposeful take will not be authorized under this permit. In rare 
cases where purposeful take may be necessary to avoid incidental take 
(such as relocating birds or a nest from a critical project area), it 
may be authorized under 50 CFR 22.23 (for purposeful take of eagles to 
protect agriculture, wildlife, and other interests), 50 CFR 22.25 (take 
of golden eagle nests for resource development and recovery 
operations), or new 50 CFR 22.27 (take of nests for health and safety). 
The latter regulation is finalized as part of this rulemaking. Where 
appropriate, the Service will issue a single permit that combines 
authorizations provided under the various regulations. For example, an 
airport that meets the obligations of its Wildlife Hazard Management 
Plan and adopts measures developed in cooperation with the Service to 
minimize the potential for take of eagles, could be issued a 
programmatic permit under these regulations (Sec.  22.26) that would be 
valid for up to 5 years to authorize eagle take that occurs as the 
result of unavoidable collisions between eagles and planes. One of the 
stipulations of the permit would likely be the requirement to haze 
eagles in the vicinity of airports, which in some cases could 
constitute disturbance (for example, to prevent eagles from re-nesting 
at a hazardous location). Because this hazing is intentional and the 
effects on the eagles purposeful, it does not meet the issuance 
criteria for the Sec.  22.26 permit, which requires the taking to be 
associated with, but not the purpose of, the activity. Therefore, we 
would issue the permit with the combined authority of both Sec.  22.26 
and Sec.  22.23. However, the regulations at Sec.  22.23 had previously 
limited permit tenure to 90 days because the need for programmatic 
authorization was not contemplated at the time that regulation was 
developed. In order to have the ability to extend this type of 
authorization to ``Advanced Conservation'' programmatic permittees, we 
are amending the regulations at Sec.  22.23 to allow permits to also be 
valid for up to five years. We are also taking the opportunity to make 
additional minor revisions throughout Sec.  22.23 to clarify that we 
may issue permits under that section to alleviate safety emergencies, 
and not just to protect agriculture, wildlife or other interests from 
depredating eagles. Hazing eagles at airports has been the primary 
purpose for which we have exercised this option, but there may be other 
scenarios where eagles are not depredating on any resource or private 
property, but their presence poses a danger to themselves or to people 
(e.g. at uncovered landfills where eagles may ingest toxic substances). 
Other than these clarifying revisions, including to the section title, 
and amending the permit tenure, we are not making any substantive 
revisions to the regulations at Sec.  22.23 in this rulemaking.
    Population Assessment and Take Thresholds. Permit issuance will be 
conditioned on various criteria, the most important of which is that 
the permitted take is compatible with the preservation of the bald 
eagle and the golden eagle. The statutory requirement that the 
authorized activities be compatible with the preservation of bald 
eagles and golden eagles ensures the continued protection of the 
species while allowing some impacts to individual eagles. For purposes 
of these regulations, ``compatible with the preservation of the bald 
eagle and golden eagle'' means ``consistent with the goal of stable or 
increasing breeding populations.''
    In our June 5, 2007, proposed rule, we proposed to use 0.54% as the 
threshold rate of decline, which is the rate of decline used by 
Partners in Flight (PIF) as one of the factors for designating an avian 
species to their Continental Watch List. However, steady declines, even 
as small as 0.54% annually, would cumulatively result in an 
unacceptably large decrease in eagle populations over time. For this 
and other reasons (see Responses to Public Comments), we agree that the 
original proposed management scenario was not sufficiently conservative 
and will instead adopt as our management goal increasing or stable 
breeding populations.
    In the DEA and notice re-opening of the comment period on the rule 
(73 FR 47574, August 14, 2008), to elucidate the statutory standard of 
``preservation of the bald eagle or the golden eagle,'' we proposed the 
following terminology: ``maintaining increasing or stable 
populations.'' We continue to support the essential meaning of that 
standard, but recognized that it could be misapplied to constrain any 
authorization of take because any take of a bald or golden eagle by 
some degree results in a population decrease, even if short-term and 
inconsequential for the long-term preservation of the species. Thus, if 
interpreted so narrowly, the word ``maintaining'' would render us 
unable to authorize any take. Therefore, we are revising our 
interpretation of ``preservation of the eagle'' to read ``consistent 
with the goal of stable or increasing breeding populations.'' The

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phrase ``consistent with the goal of'' will allow take that is 
compatible with long-term stability or growth of eagle populations. 
Adding the word ``breeding'' clarifies the significance of the number 
of breeding pairs for maintaining or growing populations, versus 
floaters (non-breeding adults). For more discussion on the biological 
basis for distinguishing between breeding eagles and floaters, see the 
FEA.
    To establish management populations for bald eagles, we used natal 
populations (eagles within the median natal dispersal range of each 
other, estimated at 43 miles) in our evaluation in order to look at 
distribution across the landscape. Being able to see where natal 
populations appear sparser, rather than concentrated, allows us to 
determine natural boundaries between regional eagle populations, 
reducing the risk that we would issue take permits in any one regional 
management area in a manner that is disproportionate to the population 
in the area.
    We acknowledge that this approach is somewhat subjective, and that 
the regional management populations delineated are not, in most cases, 
genetically or even demographically isolated. However, we believe the 
approach does serve to identify biologically-based, regional 
populations at a scale meaningful for eagle conservation. The Service's 
goal in managing bald eagles at this scale is to ensure permitted take 
does not negatively affect the species' status in any regional 
management population.
    Because the management populations delineated by this approach 
roughly correspond to the Service's organizational structure made up of 
eight Service Regional Offices, we will manage bald eagles based on 
populations within the eight Service Regions, with some shared 
populations. Permits will be administered by Service Regions in 
coordination with each other, especially where a management area lies 
in more than one Service Region. We plan to evaluate this management 
and administrative approach regularly, at least once every five years.
    For golden eagles, available data on distribution are not as 
spatially precise as data for bald eagles. We will manage take of 
golden eagles according to thresholds set at the Bird Conservation 
Region (BCR) level because the only range-wide estimates available for 
golden eagles are BCR-scale population estimates. BCRs are ecologically 
distinct regions in North America with similar bird communities, 
habitats, and resource management issues. Developed by a mapping team 
at the first international meeting of the North American Bird 
Conservation Initiative (NABCI) in 1998, BCRs are an application of the 
framework of nested ecological units delineated by the Commission for 
Environmental Cooperation (CEC).
    Because Service Regions are not administered according to BCR 
boundaries, we will administer permits by Service Regional Permit 
offices. Service Regions would coordinate closely when issuing permits 
to ensure that the threshold for that BCR is not exceeded. 
Unfortunately, there is little reliable recent data for breeding golden 
eagles. Many States have not had the resources to conduct monitoring of 
golden eagle populations, in some cases for up to 20 or more years. 
However, we will base thresholds on existing data and modeling until 
better data become available. As discussed further below and in greater 
detail in the FEA, the best available data we have for golden eagles 
indicate modest declines in the four BCRs that constitute 80 percent of 
its range in the lower 48 states. As a result, until we have additional 
data to show that populations can withstand additional take, we are 
deferring implementation of the new permit types for golden eagles, 
except for safety emergencies and programmatic permits. We will 
continue to issue historically-authorized take permits under existing 
permit types at the level of take carried out under those permits 
(average over 2002-2007).
    We will use modeling to evaluate the level of take we can permit 
that is compatible with this statutory threshold, taking into 
consideration the cumulative effects of all permitted take, including 
other forms of lethal take permitted under this section and other 
causes of mortality and nest loss. Due to the inherent limits of 
monitoring to detect precise fluctuations in bald eagle and golden 
eagle numbers, coupled with the uncertainty as to whether individual 
actions being permitted will in fact result in a ``take,'' we cannot 
precisely correlate each individual permit decision with a specific 
population impact. However, we will periodically re-calibrate regional 
take thresholds, using the best available data, including reporting 
data from permittees, data from post-delisting monitoring (for bald 
eagles), WEST surveys (for golden eagles), the Breeding Bird Survey, 
and fall and winter migration counts to assess the status of eagle 
populations and adjust permitting thresholds on an ongoing basis as 
appropriate.
    In our June 5, 2007, proposed rule, we stated that our preliminary 
analysis indicated that demand for permits under these regulations, and 
the effects of issuing those permits, including mitigation measures, 
would not be significant enough to cause a decline in eagle populations 
from current levels. (We recognized that take of bald eagles in the 
Southwest would need to be extremely limited, if permitted at all.) 
However, further analysis indicates that there are additional 
populations where a relatively modest level of demand for take permits 
could exceed the level of take that would be compatible with 
maintaining current population levels, particularly for golden eagles.
    A 2006 survey (Good and others, 2007) showed decreasing golden 
eagle populations in two BCRs. A draft report of 2007 surveys in the 
same areas (BCRs 9, 10, 16, and 17, hereinafter WEST areas) found 
decreasing golden eagle populations in two BCRs, one of which was the 
same as the previous report (Good and others, 2008). Kirk and Hyslop 
(1998) indicated that golden eagle populations may be declining in some 
areas of Canada. Good and others (2004) estimated that there were just 
over 27,000 golden eagles in the 4 BCRs in which the species is of 
conservation concern. These BCRs encompass much of the western U.S. 
population and most of the North American population of this species. 
Breeding bird surveys and migration counts are inconclusive but suggest 
lowered reproduction rates in the western United States, possibly due 
to habitat alteration and loss, with concomitant declines in prey 
(Kochert and others, 2002). A preliminary report on the 2008 surveys in 
the WEST areas showed population declines in all four BCRs covered in 
the survey, an area which is believed to contain approximately 80% of 
the golden eagle population in the lower 48 states.
    These new permits represent a somewhat different approach to eagle 
management and have significant policy implications and uncertainties. 
Those uncertainties and stochasticity (natural variability in vital 
rates affecting population trends) for both species support a more 
conservative approach than we proposed in our DEA, which proposed 
capping threshold at [frac12] maximum sustainable yield (MSY). The MSY 
is the greatest harvest rate over an indefinite period that does not 
produce a decline in the number of breeding adults in the population.
    For a number of reasons (outlined in the following discussion) we 
intend to initially cap permitted take of bald eagles at 5% estimated 
annual productivity. This approach is consistent with the 
recommendations made by Millsap and Allen (2006) for

[[Page 46840]]

permitting take of various raptor species for falconry purposes. For 
golden eagles west of 100 degrees West longitude, including in Alaska, 
we will initially implement this rule only insofar as issuing take 
permits based on levels of historically authorized take, safety 
emergencies, and take permits designed to reduce ongoing mortalities 
and/or disturbance. Future projects seeking programmatic permits would 
need to minimize their own take of golden eagles to the point that it 
is unavoidable and also reduce take from another source to completely 
offset any new take from the new activity. Estimates of golden eagle 
population size in Alaska are coarse, based upon even fewer data 
sources than in the lower 48 states, and juvenile survival may be 
significantly lower, so management would therefore need to be 
conservative. In addition, McIntyre et al. (2008) suggested that 
conservation strategies for migratory golden eagles require a 
continental approach.
    For golden eagles east of 100 degrees West longitude, we will not 
issue any take permits unless necessary to alleviate an immediate 
safety emergency. We do not have enough data on rates of golden eagle 
mortality in the eastern U.S. to issue programmatic take permits.
    Our modeling showed there would be negative effects to the floater 
portion of the bald eagle population (using population trend data from 
Florida) at [frac12] MSY and even some minor effects with setting take 
at 5% of estimated annual productivity. Floaters, for which monitoring 
is rarely conducted, serve to buffer populations from decline in times 
when productivity does not offset mortality, and also serve to provide 
a buffer for unforeseen effects to populations. Importantly, the models 
did not factor in the cumulative impacts that were discussed in the 
DEA. Furthermore, the lack of annual monitoring to ensure we are not 
having a negative effect on populations, particularly when the 
thresholds we are establishing would be in effect for five years, 
compels us to adopt the more conservative approach. Some commenters, 
including eagle experts in various parts of the U.S. believe the DEA's 
population numbers and survival rates for bald eagles may have been too 
high for some areas of the country.
    Additionally, the caps recommended in Millsap and Allen were in the 
context of falconry, where removal of birds from the population has no 
associated impacts to habitat, whereas many permits issued under both 
these new regulations will have long-term or permanent habitat-related 
impacts in addition to the removal of an individual from the 
population. Therefore, we believe that caps should be no less 
conservative than recommended for falconry take.
    The lower take thresholds also reflect the cultural significance of 
both species. Cultural significance is not limited to Native American 
religious purposes, but encompasses a broad cultural regard for both 
species. Although collected by some Native American tribes for 
ceremonial purposes, the overall cultural value placed on bald eagles 
and golden eagles is generally quite distinct from the value of 
harvesting them. This fact warrants a different, significantly more 
conservative approach than for managing game bird populations wherein 
allowable take approaches MSY.
    We intend, through a structured coordination process with States 
and tribes, to develop monitoring and research adequate to both resolve 
current uncertainties in the data and to provide enhanced ability to 
detect the effects of the permit program. If, after implementation for 
a time period commensurate with the normal population cycles of the 
eagle, data then indicate take thresholds can be increased in certain 
regions, we will increase thresholds accordingly to allow more take. 
One factor that should allow us to increase take thresholds in some 
regions for both species is the implementation of advanced conservation 
measures through programmatic permits to reduce ongoing take that is 
currently unauthorized. (See our discussion below under ``Programmatic 
Permits.'') For more detailed discussion of population modeling and 
permitting thresholds, please see our final environmental assessment of 
this action, available on our website at https://www.fws.gov/migratorybirds/baldeagle.htm.
    To address the possibility that demand exceeds our scientifically-
based take thresholds, the final regulation contains permit issuance 
criteria to ensure that requests by Native Americans to take eagles 
from the wild--where the take of live, wild eagles is absolutely 
necessary to meet the religious purposes of the tribe, as opposed to 
the use of feathers and parts that may be obtained from the National 
Eagle Repository--are given first priority over all other take, except 
as necessary to alleviate safety emergencies. (Permit regulations 
governing take and possession of eagles by Native Americans are set 
forth in 50 CFR 22.22) The American Indian Religious Freedom Act (42 
U.S.C. 1996), sets forth Federal policy to protect and preserve the 
inherent right of American Indians to express and exercise their 
traditional religions, including but not limited to, access to sites, 
use and possession of sacred objects, and the freedom to worship 
through ceremonials and traditional rites.
    If emergency and Native American religious needs can be met, the 
issuance criteria further provide that programmatic permit renewals are 
given third priority. Projects to promote and maintain public health 
and safety have fourth priority. For golden eagle nest take permits, 
resource development and recovery operations have fifth priority. 
Assuming those interests can be met, bald eagle take for other 
interests may be permitted as long as total take authorizations do not 
surpass 5% estimated annual productivity for the regional bald eagle 
population. Initially, until we have data to show that golden eagles 
can withstand additional take, we will issue permits at historically-
authorized take levels under existing permits, for emergency take, and 
for programmatic take (west of 100 degrees West longitude). If, in the 
future, data and modeling suggest golden eagle populations can support 
additional take, we would, in accordance with the prioritization 
criteria, begin to authorize golden eagle take at up to 1% of annual 
productivity, unless information available at that time demonstrates 
that higher levels of take can be supported (following Millsap and 
Allen 2006).
    The Service's Regional Directors each will be responsible for 
developing a structured allocation process consistent with the rule's 
prioritization criteria to be implemented in each Service Region if 
there is evidence that demand for take will exceed take thresholds for 
either species of eagle.
    Because we need, at least initially, to limit take permits for 
golden eagles to historically-authorized take levels, we will use the 
prioritization issuance criteria from this rule to guide permit 
decisions with regard to allocating all golden eagle take permits. For 
example, in Service Region 2, the Service has issued permits to take 28 
golden eagles per year on average from 2002 - 2007 under the various 
permit types that allow take (e.g., scientific collecting, depredation, 
Native American religious purposes, etc.). On average, 23 of the golden 
eagles were taken for Native American religious purposes. If next year, 
the demand from qualified Native Americans increases to 28, we will 
issue all the available take permits (28) to Native Americans--unless 
there is a need to take eagles to alleviate a safety emergency (to 
protect either eagles or

[[Page 46841]]

people from physical harm or death), in accordance with the 
prioritization order.
    A wide variety of activities, including various types of 
development, resource extraction, and recreational activities near 
sensitive areas such as nesting, feeding, and roosting sites, can 
disrupt or interfere with the behavioral patterns of bald eagles. We 
developed National Bald Eagle Management Guidelines (NBEMG or 
Guidelines) as a tool for landowners, project proponents, and the 
general public engaged in activities in the vicinity of bald eagles. 
The NBEMG are available at https://www.fws.gov/migratorybirds.baldeagle.htm. The NBEMG address potential negative 
effects of human activities on bald eagles, based on observed bald 
eagle behavior, and provide guidance on what types of activities are 
likely to cause bald eagle disturbance at varying distances to nests, 
communal roosts, and foraging areas, and how to avoid such disturbance.
    We intend to use the Draft U.S. Fish and Wildlife Service Raptor 
Conservation Measures (soon to be released for public notice and 
comment) as interim guidance for golden eagle disturbance, until 
species-specific guidance can be developed. When referring to both the 
NBEMG and the U.S. Fish and Wildlife Raptor Conservation Measures in 
this rulemaking document, we refer to both documents together as 
``guidelines'' with a lower case ``g.''
    By adhering to the guidelines, landowners and project proponents 
should be able to avoid eagle disturbance most of the time. If avoiding 
disturbance is not practicable, the project proponent may apply for a 
take permit. A permit is not required to conduct any particular 
activity, but is necessary to avoid potential liability for take caused 
by the activity.
    Disturbance may also result from human activity that occurs after 
the initial activities (e.g., residential occupancy or the use of 
commercial buildings, roads, piers, and boat-launching ramps). In 
general, we do not intend to issue permits for routine activities such 
as hiking, driving, normal residential activities, and ongoing use of 
existing facilities, where take could occur but is unlikely. New uses 
or uses of significantly greater scope or intensity may raise the 
likelihood that eagles will be disturbed, and as such could require 
authorization for take under these regulations.
    To assess whether the Service's predictions regarding the 
likelihood of disturbance are generally sound, and thereby ensure that 
permit requirements are not unnecessarily burdensome to the public and 
are adequately protecting eagles, we will require permittees to provide 
basic post-activity monitoring (described below) by determining whether 
the nest site, communal roost, or important foraging area continues to 
be used by eagles for up to three years following completion of the 
activity for which the permit was issued, depending on the form and 
magnitude of the anticipated take and the objectives of the associated 
conservation measures. Where an activity is covered by a management 
plan that establishes monitoring protocols (e.g., an airport Wildlife 
Hazard Management Plan), the permit may specify that monitoring shall 
be conducted according to the pre-existing management plan.
    We will use reporting data, as well as supplemental data we collect 
from some permittees' project areas, to ascertain how the activity 
actually affected the eagles in the area. With this information, we may 
be able to adjust take thresholds if take does not occur. The report 
data also will help us to assess how likely it is that future 
activities will result in loss of one or more eagles, a decrease in 
productivity of bald or golden eagles, and/or the permanent abandonment 
or loss of a nest site, communal roost site, or important foraging 
area. The outcome of disturbance permits, recorded in this way, may 
allow us to recalibrate the number of annual permits available in a 
Service Region, and to refine recommendations in future versions of the 
guidelines regarding buffer distances, timing of activities, and other 
practices that minimize take of eagles.
    Although the information we will ask permittees to provide is 
relatively basic--whether eagles are observed at the nest, roost site 
or foraging area--we realize that reporting will not always be 
accurate. In addition to errors, some permittees may (unjustifiably) be 
concerned about law enforcement and may under-report take without fully 
understanding that the take has been authorized by their permits and 
thus is not a violation of the law. Overall, however, we expect most 
permittees will make a good-faith effort to honestly report eagle use 
of the area, resulting in a substantial body of useful information we 
do not otherwise have the resources to collect.
    Along with annual report data, we will periodically assess overall 
population trends of both species of eagles, taking into consideration 
the cumulative effects of other activities that take eagles and eagle 
mortalities due to other factors. Based on the modeling we will use to 
set take thresholds, we do not expect population declines as the result 
of the authorizations granted through these regulations. However, it is 
also possible that external factors could arise that negatively affect 
eagle populations. Whatever the cause, in order to ensure that take is 
compatible with the preservation of the bald or golden eagle, we will 
not issue permits for take within a regional eagle population without 
sufficient data indicating the take will not result in a population 
decline.
    Programmatic permits. The June 2007 proposed rule distinguished 
between lethal and non-lethal take (e.g., disturbance), and proposed 
that lethal take would be authorized only if it was unavoidable even 
when Best Management Practices (BMPs) were followed. We revised this 
concept to remove the distinction between lethal and non-lethal take, 
and replace it with a distinction between individual or ``one-time'' 
\1\ take versus programmatic take. A programmatic permit will be 
available to industries or agencies undertaking activities that may 
disturb or otherwise take eagles on an on-going operational basis. We 
are defining ``programmatic take'' as ``take that (1) is recurring, but 
not caused solely by indirect effects, and (2) occurs over the long 
term and/or in a location or locations that cannot be specifically 
identified.'' The second criterion is the one that distinguishes 
programmatic take from any other take that has indirect effects that 
continue to cause take after the initial action. It is the key factor 
that makes programmatic take programmatic.
---------------------------------------------------------------------------

    \1\ By describing the standard (non-programmatic) permit as 
authorizing ``individual'' or ``one-time'' take, we do not mean to 
infer that only one eagle can be taken under a standard permit, or 
that if more than one eagle is taken, the take must occur 
simultaneously. We use the term, ``one-time'' for lack of a better 
word to refer to take is quantifiable and of a specified amount.
---------------------------------------------------------------------------

    We define ``programmatic permit'' as ``a permit that authorizes 
programmatic take. A programmatic permit can cover other take in 
addition to programmatic take.'' We can issue programmatic permits for 
disturbance as well as take resulting in mortalities, based on 
implementation of ``advanced conservation practices'' developed in 
coordination with the Service. ``Advanced conservation practices'' 
(ACPs) refers to scientifically-supportable measures that are approved 
by the Service and represent the best-available techniques to reduce 
eagle disturbance and/or ongoing mortalities to a level where remaining 
take is unavoidable. The Federal Highway Administration is an example 
of an agency for which this streamlined

[[Page 46842]]

approach may benefit the agency and eagles. A programmatic take permit 
may be appropriate for industries such as the energy and transportation 
providers, among others, if they elect to work with the Service to 
develop ACPs. The ACPs and plan specifications will then become permit 
conditions, along with monitoring and reporting requirements more 
comprehensive than those for individual take permits. Programmatic 
permits are designed to provide a net benefit to eagles by reducing 
ongoing unauthorized take. Accordingly, programmatic permit conditions 
will be designed to provide ongoing long-term benefits to eagles. 
Recipients of programmatic permits must perform more rigorous 
monitoring than is required for standard, individual take permits.
    Because the requirements for obtaining programmatic take 
authorization are designed to reduce take, the take authorized by 
programmatic permits for ongoing activities will not be subtracted from 
regional thresholds, nor would they be subject to the prioritization 
criteria. The reductions in take that result from implementation of new 
measures to reduce take from ongoing activities under programmatic 
permits may allow the Service to increase take thresholds and make 
additional permits available for other activities likely to result in 
take.
    Applicants for programmatic permits for new activities will be 
subject to the same rigorous standards and may also be required to 
apply conservation measures at other sites (possibly owned or operated 
by a third party) where eagles are taken by existing operations. The 
purpose of the off-site measures would be to reduce take to a level 
that offsets some or all of the new take from the applicant's activity. 
The degree to which the applicant would be required to offset the take 
will depend on the status of eagle populations in the region; if 
populations of the particular eagle species are robust, the Service may 
not require any off-site reductions in take. However, if regional 
populations cannot absorb significant new take, the Service may require 
the project proponent to completely offset the effects of the new 
activity with reductions in take elsewhere.
    To encourage potential applicants to seek programmatic permits 
(versus standard permits), the regulations contain issuance criteria 
that give priority to those seeking renewal of programmatic permits. 
These criteria will provide programmatic permittees with some assurance 
(though never an absolute guarantee) that previously authorized levels 
of take from on-going operations will continue to be authorized in the 
future. Programmatic permit renewals will have third priority, after 
(1) safety emergencies, and (2) take necessary to meet Native American 
religious needs, but before (4) non-emergency public health and safety.
    A programmatic permit is optional. Entities that engage in 
programmatic take and who wish to obtain authorization for the take can 
choose whether to apply for the programmatic take permit or apply for 
standard permits for individual takes. One advantage of opting for the 
programmatic permit is it would remove liability comprehensively. It 
also lessens concern about whether additional take can be authorized 
under take thresholds in the future. The disadvantage is that the 
process of working with the Service to develop the permit conditions is 
likely to be time-consuming and more expensive than seeking a standard 
permit. Also, implementation of the ACPs will in most cases require 
substantial resources. In the long term, however, depending on the 
scale of an applicant's operations, programmatic permits should be the 
most economical approach for authorizing long-term or wide-ranging take 
of eagles.
    A programmatic permit is not available where the only long-term 
take is due to indirect effects from an initial action. Programmatic 
take is the direct result of ongoing operations. The following are 
examples of programmatic take:
    1. A railroad that routinely strikes eagles feeding on carcasses on 
the tracks.
    2. Utilities that kill eagles through collisions and electrocutions 
from contact with power lines.
    3. Ongoing disturbance at a port due to vessel traffic and/or other 
port operations.
    4. Construction and maintenance of highways throughout a State or 
other jurisdiction that routinely disturbs eagles.
    5. Airports that periodically (but immediately upon discovery) need 
to remove eagle nests to protect human and eagle safety.

Below are examples of what is not programmatic take:

    1. Construction of a boat ramp, with or without long-term indirect 
effects that take eagles (boat traffic).
    2. Construction of a port when eagles are disturbed by pile driving 
and other construction activities.
    3. Construction of a single highway, or multiple highways, where 
eagle take can be projected to occur at particular locations and during 
specific project phases.
    Although we define ``programmatic take'' as take that results from 
an activity and not from the activity's indirect effects, many 
activities that result in programmatic take will also have adverse 
indirect effects on eagles. Therefore, most programmatic permits will 
authorize other take in addition to the programmatic take, to cover the 
indirect effects. The Service will consider indirect effects of 
activities under both types of permits, first when deciding whether to 
issue the permit, and again when establishing conservation measures. 
Because programmatic permits are designed to reduce take to the level 
where it is unavoidable, if there are ACPs that will reduce take caused 
by indirect effects, those ACPS will be required conditions of the 
programmatic permit.
    As further illustration of the differences between programmatic and 
standard permits, and the need to consider indirect effects under both, 
the following are two distinct activities that each directly take 
eagles and also have indirect effects that continue to take eagles; 
however, only one programmatically takes eagles and can be covered with 
a programmatic take permit.
    First, a large housing development provides buffers around each 
nest on the property as recommended by the Service to avoid disturbing 
eagles. However, due to various constraints, the developer is unable to 
avoid impacts to the eagles' prey base, resulting in take of eagles in 
the form of lost productivity or abandonment of nesting territories. In 
this case, the construction of the development is not ongoing. What 
continues are the indirect effects of depriving eagles of their prey 
base. Therefore, the take caused by the housing development is not 
programmatic take, and to be authorized, would have to be covered under 
a standard permit.
    Our second example is a company interested in siting a wind-power 
facility. We are currently unaware of any measures that would eliminate 
eagle mortalities when turbines are sited in golden eagle habitat 
(including migration corridors). If ACPs can be developed to 
significantly reduce the take, the operator may qualify for a 
programmatic take permit, since the ongoing mortalities are the direct 
result of the operation of the turbines. In addition to measures 
designed to reduce take directly, ACPs should also include measures to 
reduce indirect effects that contribute to the level of take, such as 
ensuring the project site does not

[[Page 46843]]

provide enhanced habitat for small mammals that eagles feed on, which 
would attract eagles to the area and increase the likelihood of 
collision with turbines.
    Permit application process. Permits are available to Federal, 
State, municipal, or tribal governments; corporations and businesses; 
associations; and private individuals, all of which are subject to the 
prohibitions of the Eagle Act. Persons and organizations that obtain 
licenses, permits, grants, or other such services from government 
agencies are responsible for their own compliance with the Eagle Act 
and should individually seek permits for their actions that may take 
eagles. Government agencies must obtain permits for take that would 
result from agency actions that are implemented by the agency itself 
(including staff and contractors responsible for carrying out those 
actions on behalf of the agency).
    The final regulations do not specify what information an applicant 
must submit to apply for an eagle take permit or to file an annual 
report, other than that he or she must submit a complete application 
form, including any required attachments to apply for a permit, and for 
annual reporting, the permittee must submit all the information 
required on the report form. By avoiding codification of application 
and reporting requirements, we can revise application and reporting 
requirements without undergoing the time-consuming rulemaking process. 
However, the public will have the opportunity to provide input on the 
content of these forms. All forms must be approved by the President's 
Office of Management and Budget (OMB) every three years, and as part of 
that process, all new forms and all changes to forms are subject to 
public review via a series of notices in the Federal Register. The 
forms we will use when this rule takes effect were subject to the OMB 
and public review process while this rule was being developed.
    The new Service permit application Form 3-200-71 requires the 
following information from the applicant as part of the application 
process (in addition to the requirements of Sec.  13.12(a) of this 
subchapter, which apply to all types of permits issued by the Service):
    1. A detailed description of the activity that will cause the 
disturbance or other take of eagles;
    2. The species and number of eagles that will be taken and the 
likely form of that take;
    3. Maps and digital photographs that depict the locations of the 
proposed activity, including the area where eagles are likely to be 
taken;
    4. For activities that are likely to disturb eagles (versus other 
take),
    a. Maps and digital photographs of the eagle nests, foraging areas, 
and concentration sites where eagles are likely to be disturbed by the 
proposed activity (including the geographic coordinates of the activity 
area and important eagle-use area(s) and the distance(s) between those 
areas);
    b. Whether or not the important eagle-use area(s) is visible from 
the activity area, or if screening vegetation or topography blocks the 
view; and
    c. The nature and extent of existing activities in the vicinity 
that are similar to the proposed activity, and the distance between 
those activities and the important eagle-use area(s);
    5. The date the activity will start and is projected to end;
    6. An explanation of what interests(s) in a particular locality 
will be protected by the take, including any anticipated benefits to 
the applicant or to the public;
    7. An explanation of why avoiding the take is not practicable, 
including at a minimum, a description of why take cannot be avoided 
after taking into consideration, relative to the magnitude of the 
impacts to eagles, (1) the cost of the remedy comparative with 
proponent resources; (2) existing technology; and (3) logistics in 
light of overall project purposes; or
    8. For programmatic take, why take is unavoidable; and
    9. A description of measures proposed to offset the detrimental 
impact of the proposed activity on the regional eagle population.
    The Service's Ecological Services Field Offices may provide 
technical assistance prior to development of permit applications. In 
many cases, the Service may be able to recommend measures to reduce the 
likelihood of take, negating the need for a permit. The technical 
assistance that we provide from the field will reduce the number of 
applications to our permit offices for activities that (1) are unlikely 
to take eagles, or (2) can practicably be modified to avoid the take. 
The Service may elect to conduct an on-site assessment to determine 
whether the proposed activity is likely to take eagles and whether 
reasonable modifications to the project will alleviate the probability 
of take. In addition, State and tribal natural resources agencies may 
also be able to provide information pertaining to the number and 
location of eagles, eagle nests and other important eagle-use areas 
within the area potentially affected by the activity.
    Application Evaluation Process. An initial consideration is whether 
take is likely to occur. Ideally, most potential applicants whose 
activities will not likely result in take will be dissuaded from 
applying for a permit after voluntary technical consultation with a 
Service field biologist. If, after an application is submitted, the 
Service determines that take is not likely to occur, we may issue the 
permit (if permit issuance criteria are met); however, if we do not 
consider take likely to occur, we will not subtract the authorized take 
from Regional take thresholds--unless follow-up monitoring reveals that 
it did actually occur.
    Our primary consideration when issuing permits under this 
regulation is whether the take would be compatible with the 
preservation of the bald eagle and the golden eagle, including 
consideration of the cumulative effects of other permitted take and 
additional factors affecting eagle populations. When evaluating the 
take that may result from an activity for which a permit is sought 
(e.g., residential development), we will consider the effects of the 
preliminary activity (construction) as well as the effects of the 
foreseeable ongoing future uses (activities associated with human 
habitation). The impacts and threshold distances that we will consider 
will not be limited to the footprint of the initial activity if it is 
reasonably foreseeable that the activity will lead to adverse indirect 
effects on eagles. For example, when evaluating the effects of 
expanding a campground, in addition to considering the distance of the 
expansion from important eagle-use areas, we would consider the effects 
of increased pedestrian and motor traffic to and from the expanded 
campground. In many cases, the potential for take could be greater as a 
result of the activities that follow the initial project. For example, 
the installation of a boat ramp 500 feet from an important eagle 
foraging area may not disturb eagles during the construction phase, but 
the ensuing high levels of boat traffic through the area during peak 
feeding times may cause disturbance. Trail construction 400 feet from a 
nest is generally unlikely to take eagles, but if the trail will be 
open to off-road vehicle use during the nesting season, we would need 
to consider the impacts of the vehicular activity as part of the 
impacts of the trail construction.
    If demand will exceed regional take thresholds (see above 
discussion under Population Assessment and Take Thresholds), the permit 
office will need to evaluate how the proposed activity

[[Page 46844]]

should be prioritized in accordance with the Regional structured 
allocation process established to ensure the Service adheres to the 
prioritization issuance criteria set forth in Sec.  22.26(e) and Sec.  
22.27(d)(5) of the regulations.
    We must then consider whether the take is associated with the 
permanent abandonment or loss of a nest site, territory, or other 
important eagle-use area. In reality, this evaluation would be tied to 
our primary consideration of whether the take would be compatible with 
the preservation of the bald eagle or the golden eagle because take 
associated with the loss of an important eagle-use area will generally 
have larger population impacts than a single, one-time disturbance. 
Depending on the magnitude of the impacts, the potential take could 
exceed the thresholds we establish as necessary to safeguard eagle 
populations. If so, we must deny the permit unless the applicant 
commits to compensatory mitigation measures that would offset the take 
to the level where it is compatible with the preservation of eagles.
    Additional evaluation criteria include whether: (1) the take is 
necessary to protect a legitimate interest in a particular locality; 
(2) the take is associated with, but is not the purpose of the 
activity; (3) the take cannot practicably be avoided (or for 
programmatic authorizations, the take is unavoidable); and (4) the 
applicant has minimized impacts to eagles to the extent practicable, 
and for programmatic authorizations, the taking will occur despite 
application of Advanced Conservation Practices developed in 
coordination with the Service.
    Before issuing a permit, we will consult with federally-recognized 
tribes if issuance of the permit might affect traditional tribal 
activities, practices, or beliefs. The Service's obligation to consult 
on a government-to-government basis with Native American tribes is set 
forth in Executive Order 13175, Consultation with Indian Tribal 
Governments (Nov. 6, 2000) and the Service's own ``Native American 
Policy'' (https://www.fws.gov/nativeamerican/Graphics/Native_Amer_Policy.pdf). The areas where eagles would be taken have the potential 
of being regarded as areas of traditional religious and cultural 
importance to Indian tribes, commonly referred to as Traditional 
Cultural Properties (TCP). Eagles are highly significant species for 
Native American culture and religion, and as such they might be viewed 
as contributing elements to a TCP. Take of one or more eagles from a 
TCP area could potentially be considered an adverse effect to the TCP. 
Eagles also have cultural significance to the wider American public, 
with the result that the Service will need to consider the concerns of 
any party with cultura