Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests, 27933-27976 [2016-10542]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 88 (Friday, May 6, 2016)]
[Proposed Rules]
[Pages 27933-27976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10542]



[[Page 27933]]

Vol. 81

Friday,

No. 88

May 6, 2016

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Parts 13 and 22





Eagle Permits; Revisions to Regulations for Eagle Incidental Take and 
Take of Eagle Nests; Proposed Rule

Federal Register / Vol. 81 , No. 88 / Friday, May 6, 2016 / Proposed 
Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 22

[Docket No. FWS-R9-MB-2011-0094; FF09M20300-167-FXMB123109EAGLE]
RIN 1018-AY30


Eagle Permits; Revisions to Regulations for Eagle Incidental Take 
and Take of Eagle Nests

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose revisions to 
the eagle nonpurposeful take permit regulations and eagle nest take 
regulations that we promulgated in 2009. Proposed revisions include the 
following: Changes to permit issuance criteria and duration; 
definitions; compensatory mitigation standards; criteria for eagle nest 
removal permits; permit application requirements; and fees. The 
revisions are intended to add clarity to the eagle permit regulations, 
improve their implementation, and increase compliance, while providing 
strong protection for eagles.

DATES: You may submit comments on the proposed rule until July 5, 2016. 
The Environmental Protection Agency will soon publish a notice in the 
Federal Register with information on the deadline for submitting 
comments on the draft programmatic environmental impact statement. 
Comments on the information collection aspects of this rule must be 
received on or before June 6, 2016.

ADDRESSES: Document Availability: A draft programmatic environmental 
impact statement (DPEIS) has been prepared in conjunction with 
preparation of this proposed rule. Both the proposed rule and the DPEIS 
are available at https://www.fws.gov/birds/management/managed-species/eagle-management.php and also at www.regulations.gov at Docket No. FWS-
R9-MB-2011-0094.
    Comments on the Proposed Rule and DPEIS: You may submit comments by 
one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R9-MB-2011-0094, 
which is the docket number for this rulemaking. Then click on the 
Search button. On the resulting page, you may submit a comment by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R9-MB-2011-0094; Division of Policy, 
Performance, and Management Programs; U.S. Fish and Wildlife Service, 
MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    Comments on the Information Collection Aspects of the Proposed 
Rule: You may review the Information Collection Request online at 
https://www.reginfo.gov. Follow the instructions to review Department of 
the Interior collections under review by OMB. Send comments (identified 
by 1018-AY30) specific to the information collection aspects of this 
proposed rule to both the:
     Desk Officer for the Department of the Interior at OMB-
OIRA at (202) 295-5806 (fax) or OIRA_Submission@omb.eop.gov (email); 
and
     Service Information Collection Clearance Officer; Division 
of Policy, Performance, and Management Programs; U.S. Fish and Wildlife 
Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803 
(mail); or hope_grey@fws.gov (email).
    See Public Comments under SUPPLEMENTARY INFORMATION for more 
information regarding submission of comments.

FOR FURTHER INFORMATION CONTACT: Eliza Savage, 703-358-2329 or 
eliza_savage@fws.gov.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The U.S. Fish and Wildlife Service proposes revisions to our 
regulations regarding the issuance of permits for certain activities 
involving eagles. We promulgated regulations covering authorization of 
nonpurposeful (incidental) take of eagles and take of eagle nests in 
2009. Revisions to these permit regulations are needed to create a 
permitting framework that is more conducive to consistent 
administration by the Service and public compliance. Our goal is also 
to enhance protection of eagles throughout their ranges through 
implementation of avoidance and minimization of, and compensatory 
mitigation for, adverse impacts from otherwise lawful activities. The 
regulations are primarily codified in part 22 of title 50 of the Code 
of Federal Regulations.
    The Service proposes a modified definition of the Eagle Act's 
``Preservation Standard,'' which requires that permitted take be 
compatible with the preservation of eagles. We also propose to remove 
the distinction between standard and programmatic permits, codify 
standardized mitigation requirements that comport with the Service's 
draft mitigation policy, and extend the maximum permit duration for 
eagle incidental take permits (50 CFR 22.26). These proposed 
regulations also present a number of additional revisions to the eagle 
incidental take and eagle nest take regulations at 50 CFR 22.27, as 
well as revisions to the permit fee schedule at 50 CFR 13.11; new and 
revised definitions in 50 CFR 22.3; revisions to 50 CFR 22.25 (permits 
for golden eagle nest take for resource development and recovery 
operations) for consistency with the Sec.  22.27 nest take permits; and 
two provisions that apply to all eagle permit types (50 CFR 22.4 and 
22.11).

Background

    The Bald and Golden Eagle Protection Act (Eagle Act or BGEPA) (16 
U.S.C. 668-668d) prohibits take of bald eagles and golden eagles except 
pursuant to Federal regulations. The Eagle Act allows the Secretary of 
the Interior to issue regulations to authorize the ``taking'' of eagles 
for various purposes, including the protection of ``other interests in 
any particular locality'' (16 U.S.C. 668a). In 2009, the Service 
promulgated regulations at 50 CFR part 22 that established two new 
permit types for take of eagles and eagle nests (50 FR 46836, September 
11, 2009) (Eagle Permit Rule). One permit authorizes, under limited 
circumstances, the take (removal, relocation, or destruction) of eagle 
nests (50 CFR 22.27). The other permit type authorizes nonpurposeful 
take (disturbance, injury, or killing) of eagles (50 CFR 22.26) where 
the take is incidental to an otherwise lawful activity. These 
regulations currently provide for standard permits, which authorize 
individual instances of take that cannot practicably be avoided, and 
programmatic permits, which authorize recurring take that is 
unavoidable even after implementation of advanced conservation 
practices.
    The Eagle Act requires the Service to determine that any take of 
eagles the Service authorizes is ``compatible with the preservation of 
bald eagles or golden eagles.'' We refer to this clause as the Eagle 
Act preservation standard. The preservation standard underpins the 
Service's management objectives for eagles. In the preamble to the 
final 2009 regulations for eagle nonpurposeful take permits, and in the 
final environmental assessment (FEA) of the regulations, the Service 
defined the preservation standard to mean ``consistent with the goal of 
maintaining stable or increasing breeding populations'' (74 FR 46838, 
September 11, 2009).

[[Page 27935]]

    On April 13, 2012, the Service initiated two additional 
rulemakings: (1) A proposed rule to extend the maximum permit tenure 
for programmatic eagle nonpurposeful take permit regulations from 5 to 
30 years, among other changes (``Duration Rule'') (77 FR 22267), and 
(2) an advance notice of proposed rulemaking (ANPR) soliciting input on 
all aspects of those eagle nonpurposeful take regulations (77 FR 
22278).
    The ANPR highlighted three main issues for public comment: Our 
overall eagle population management objectives; compensatory mitigation 
required under permits; and the nonpurposeful take programmatic permit 
issuance criteria. As a next step, the Service issued a notice of 
intent to prepare an environmental assessment (EA) or environmental 
impact statement (EIS) pursuant to the National Environmental Policy 
Act (NEPA) (42 U.S.C. 4321 et seq.) (79 FR 35564, June 23, 2014). The 
Service then held five public scoping meetings between July 22 and 
August 7, 2014.
    The Duration Rule was finalized on December 9, 2013 (78 FR 73704). 
However, it was the subject of a legal challenge, and on August 11, 
2015, the U.S. District Court for the Northern District of California 
vacated the provisions that extended the maximum programmatic permit 
tenure to 30 years. Shearwater v. Ashe, No. CV02830-LHK (N.D. Cal., 
Aug. 11, 2015). The court held that the Service should have prepared an 
EA or EIS rather than apply a categorical exclusion under NEPA. The 
effect of the ruling was to return the maximum programmatic permit term 
to 5 years.
    The Service has prepared a draft programmatic environmental impact 
statement (DPEIS) to analyze eagle management objectives and these 
proposed revisions to the 2009 eagle permit regulations. The draft 
DPEIS is available on the Service's Web site at: https://www.fws.gov/birds/management/managed-species/eagle-management.php and also at: 
www.regulations.gov at Docket No. FWS-R9-MB-2011-0094.
    Bald eagle populations have continued to increase throughout the 
United States, increasing the potential need for permits for activities 
that may disturb, injure, or kill bald eagles. There has also been 
significant expansion within many sectors of the U.S. energy industry, 
particularly wind energy operations, and much more interest in 
permitting new long-term operations than was anticipated when the 2009 
regulations were promulgated. At the same time, golden eagle 
populations are potentially declining, heightening the challenge of 
permitting incidental take of this species for otherwise lawful 
activities. The 2009 permit regulations do not provide an optimal 
framework for authorizing incidental take under these circumstances. 
There is a general perception that the current permitting framework 
does not provide enough flexibility to issue eagle take permits in a 
timely manner. Indeed, few programmatic permits have been issued to 
date. When projects go forward without permit authorization, the 
opportunity to obtain benefits to eagles in the form of required 
conservation measures is lost and project operators put themselves at 
risk of violating the law.
    Under the current management approach, established with the 2009 
eagle permit regulations and FEA, permitted take of bald eagles is 
capped at 5 percent of estimated annual productivity (i.e., successful 
reproduction) of the population. Because the Service lacked data in 
2009 to show that golden eagle populations could sustain any additional 
unmitigated mortality, the Service set take limits for that species at 
zero. This decision has meant that any new authorized take of golden 
eagles must be at least equally offset by compensatory mitigation 
(specific conservation actions to replace or offset project-induced 
losses by reducing take elsewhere).
    In the FEA for the 2009 regulations and in the preamble to those 
regulations, the Service adopted a policy of not issuing take permits 
for golden eagles east of the 100th meridian. At the time, the Service 
determined there were not sufficient data to ensure that golden eagle 
populations were stable or increasing such that permitting take would 
not result in a decline in breeding pairs in this region. However, 
after further analysis, the Service has determined that some take can 
be permitted with implementation of offsetting mitigation. Rather than 
providing an increased level of protection for golden eagles, this 
policy has meant that activities that take golden eagles in the east 
continue to proliferate without implementation of conservation measures 
and mitigation to address impacts to golden eagles that would be 
required as the result of the permitting process.
    Since 2009, Service and U.S. Geological Survey (USGS) scientists 
have undertaken considerable research and monitoring to improve the 
Service's ability to track compliance with eagle management objectives 
and reduce uncertainty. Of particular significance, the Service has 
updated population estimates for both species of eagle and quantified 
uncertainty in those estimates. For the bald eagle, the Service now 
estimates substantially higher populations than was estimated in 2009, 
and allowable take limits will likely increase considerably across most 
of the country as a result (see further discussion below under Status 
of Eagle Populations).
    For golden eagles, recent research indicates that the population in 
the coterminous western United States might be declining towards a 
lower equilibrium size. Additionally, the Service now has a much better 
understanding of the seasonal, annual, and age-related movement 
patterns of golden eagles. These data will be incorporated into an 
updated management framework.
    In implementing the 2009 permit regulations, the Service has 
identified several provisions that could be improved for the benefit of 
both eagles and people, including the regulated community. One issue 
that has hampered efficient permit administration (of both eagle 
nonpurposeful take permits and eagle nest take permits) is the 
difficulty inherent in applying the standard that take must be reduced 
to the point where it is unavoidable, which the current regulations 
require for programmatic permits. Additionally, a lack of specificity 
in the regulations as to when compensatory mitigation is required can 
lead to inconsistencies in what is required of permittees.
    The 5-year maximum duration for programmatic permits appears to be 
a primary factor discouraging many project proponents from seeking 
eagle take permits. Many activities that incidentally take eagles due 
to ongoing operations have lifetimes that far exceed 5 years. We need 
to issue permits that align better, both in duration and the scale of 
conservation measures, with the longer term duration of industrial 
activities, such as electricity distribution and energy production. 
Extending the maximum permit duration is consistent with other Federal 
permitting for development and infrastructure projects.
    The Service undertook the 2012 ANPR, 2014 notice of intent and 
scoping meetings, and the DPEIS to improve the Service's permitting and 
conservation framework for eagles by addressing the problems noted 
above, among other issues. Moreover, since 2009, when the permits first 
became available, new developments, changing circumstances, and new 
information must be analyzed and incorporated into the Service's 
management objectives for eagles.

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NEPA Scoping Process

    The purpose of scoping is to provide interested agencies, 
stakeholder organizations, Native American tribes, and the public an 
opportunity to provide comments regarding potentially significant 
environmental issues and the scope of the environmental analysis, 
including alternatives, and help to inform the eagle management program 
and the Service decision to prepare either an EA or an EIS. Service 
staff implementing the 2009 eagle permit regulations identified a 
number of priority issues for evaluation during this scoping process, 
including the following: Eagle population management objectives; 
programmatic permit conditions; compensatory mitigation; and criteria 
for nest removal permits.
    Five public scoping meetings were held in Sacramento, Minneapolis, 
Albuquerque, Denver, and Washington, DC, between July 22, 2014, and 
August 7, 2014. Representatives from the Service were available to 
answer participants' questions and listen to their ideas and concerns. 
Approximately 213 people attended the meetings, and all were encouraged 
to submit written comments.
    The Service also set up a Web site, https://www.eaglescoping.org, to 
serve as a ``virtual meeting,'' where visitors could view the same 
information that was presented at the public meetings, including the 
overview video presentation and informational displays. Links to the 
Service email for public comments were included on the site.
    We received a total of 536 comments during the public comment 
period. Upon removal of duplicates, there were a total of 517 unique 
comments, of which many included additional attachments (e.g., scanned 
letters, one picture, and supporting documents). In addition to the 
comments received, two organizations provided spreadsheets with 
additional comments. First, the Friends of Blackwater provided a 
spreadsheet of 46 supporters of their comment. Secondly, the National 
Audubon Society provided a spreadsheet of 25,349 comments in support of 
their comment and 2,064 personalized comments. All comments were 
reviewed and considered.

Status of Eagle Populations

    The Service is proposing to modify current management objectives 
for eagles established with the 2009 eagle permit regulations and FEA 
of the regulatory permitting system under the Eagle Act. Management 
objectives direct strategic management and monitoring actions and, 
ultimately, determine what level of permitted eagle take can be 
allowed. The Service recently completed a status report on bald and 
golden eagles: ``Bald and Golden Eagles: Status, trends, and estimation 
of sustainable take rates in the United States'' (``Status Report'') 
(USFWS, 2016). The Status Report is available at: https://www.fws.gov/birds/management/managed-species/eagle-management.php. It estimates 
population sizes, productivity, and survival rates for both species; 
irdsanalyzes the effects of unauthorized take of golden eagles; 
provides recommended take limits for both species and metrics for 
converting take in the form of disturbance to debits from the take 
limits; analyzes the cumulative effects of permitting take of up to 5% 
of local area populations (the population in the vicinity of a 
particular project or activity); and recommends a schedule of 
population surveys to regularly update population size estimates for 
both species. The Status Report is essentially a compilation of the 
most current research on the population status and trends of bald and 
golden eagles and as such serves as the biological basis for the 
revised regulatory management framework we are proposing in these 
regulation revisions and the preferred alternative in the DPEIS. The 
following discussion pertaining to the status of bald and golden eagle 
populations summarizes some of the information provided and explained 
in more detail in the Status Report, available at https://www.fws.gov/birds/management/managed-species/eagle-management.php.
    The Service has estimated the population size for the bald eagle in 
the coterminous United States using a population model in conjunction 
with estimates of the number of occupied nesting territories in 2009. 
That population size estimate is 72,434, and when combined with a 
previous estimate of population size for Alaska (70,544) is 143,000. We 
derive our conservative estimate for the population size by using the 
20th quantile of the population size estimate distribution (the 20th 
quantile is the point on the probability distribution where there is 
only a 20% chance of the estimate being lower than the true population 
size). The 20th quantile represented 126,000 bald eagles for the United 
States in 2009. This number represents an increase from our population 
size estimate for the coterminous United States in 2007 (the year data 
were gathered to support delisting under the Endangered Species Act), 
which was 69,000. We attribute the difference to improved monitoring 
and estimation efforts, as well as increases in bald eagle numbers. 
Both the population model and Breeding Bird Survey (BBS) estimates 
indicate bald eagle populations are continuing to increase throughout 
the coterminous United States.
    We estimated future bald eagle populations using a conservative 
assumption that the number of suitable bald eagle nesting territories 
will not increase above the 2009 estimate. Given limitations of the 
data on Alaskan eagles and evidence from the BBS that bald eagle 
populations are growing more slowly there, we did not model projections 
for Alaska and assumed that Alaska's bald eagle population will remain 
stable (though demographic rates suggested continued growth is 
possible). With these constraints, our model forecasts that the number 
of bald eagles in the coterminous United States outside the Southwest 
will continue to increase until populations reach an equilibrium at 
about 228,000 (20th quantile = 197,000) individuals. The model predicts 
that bald eagles in the Southwest will also continue to increase from 
the 2009 population estimate of 650 until reaching an equilibrium at 
about 1,800 (20th quantile = 1,400) individuals. Again, these numbers 
are based on assumptions that underlying demographic rates and other 
environmental factors remain unchanged, and the predictions do not take 
into account forecasted changes in climate nor how such changes may 
affect bald eagle population vital rates and population size. These 
projections also assume food and other factors will not become 
limiting.
    We estimated the total population size for the golden eagle in the 
coterminous United States and Alaska was 39,000 (20th quantile = 
34,000) in 2009 and 40,000 (20th quantile = 34,000) in 2014. However, 
although the golden eagle population trend estimate based on current 
surveys was stable, an estimate from a population model similar to that 
used for the bald eagle suggested the population in the western United 
States might be declining towards a lower equilibrium size of about 
26,000 individuals.
    Using unbiased cause-of-mortality data for a sample of 386 
satellite-tagged golden eagles in the period 1997-2013, the Service 
estimated contemporary age-specific survival rates with and without 
current levels of anthropogenic mortality. Anthropogenic factors were 
responsible for about 56% of satellite-tagged golden eagle mortality, 
with the highest rates of anthropogenic mortality

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among adults (63%). We estimated the maximum rate of population growth 
for the golden eagle in the coterminous United States in the absence of 
existing anthropogenic mortality was 10.9% (20th quantile = 9.7%). 
Sustainable take under these conditions is 2,000 individuals (20th 
quantile = 1,600). The available information suggests ongoing levels of 
human-caused mortality likely exceed this value, perhaps considerably. 
This information supports the finding from the population model that 
golden eagle populations may be declining to a new, lower level.
    For much more detailed information about the current population 
status and trends, see the Status Report available at: https://www.fws.gov/birds/management/managed-species/eagle-management.php.

Description of the Rulemaking

Preservation Standard

    The Eagle Act requires that any authorized take of eagles be 
``compatible with the preservation'' of bald eagles and golden eagles. 
We defined this preservation standard in the preamble to the 2009 
regulations to mean ``consistent with the goal of maintaining stable or 
increasing breeding populations.'' The Service now proposes to modify 
that standard and incorporate it into the regulations to mean 
``consistent with the goals of maintaining stable or increasing 
breeding populations in all eagle management units and persistence of 
local populations throughout the geographic range of both species.'' 
The timeframe the Service used for modeling and assessing eagle 
population demographics is over the next 100 years (at least eight 
generations) for both eagle species relative to the 2009 baseline. This 
objective is consistent with Presidential, Department of the Interior, 
and Fish and Wildlife Service mitigation policies that aim to achieve a 
net benefit, or at a minimum, no net loss, of natural resources. (See 
the Service's mitigation policy (501 FW 2), Secretary's Order 3330, 
entitled ``Improving Mitigation Policies and Practices of the 
Department of the Interior'' (October 31, 2013), the Departmental 
Manual Chapter on Implementing Mitigation at the Landscape-scale (600 
DM 6 (October 23, 2015)), and the Presidential Memorandum on Mitigating 
Impacts on Natural Resources from Development and Encouraging Related 
Private Investment (November 3, 2015)).
    The Service considered adoption of a purely qualitative 
preservation standard such as ``to not meaningfully impair the bald or 
golden eagle's continued existence.'' However, a qualitative approach 
alone contains no standards for assessment, which could lead to 
inconsistent implementation between Service regions. Inconsistent 
implementation across Regions is a bigger concern with eagles than for 
many ESA-listed species because the range of both bald and golden 
eagles extends throughout the continental United States. Additional 
drawbacks to adopting a qualitative approach are that it is less 
compatible with formal adaptive management and does not provide a 
mechanism to assess cumulative impacts. Also, considerable quantitative 
information is available on eagle populations unlike many ESA-listed 
species, and to ignore these data or to independently reassess them for 
each permit is inconsistent with the Service's commitment to use the 
best available information and practice the best science. For these 
reasons, the Service has elected not to adopt a qualitative 
preservation standard.
    We propose to largely retain the quantitative approach we have used 
since 2009 because it is explicit, allows less room for interpretation, 
and can be consistently implemented across the country and across the 
types of activities that require permits. Our proposed approach, 
including the underlying population model, is consistent with other 
wildlife management programs, including the North American Waterfowl 
Management Plan and management of marine mammals under the Marine 
Mammal Protection Act.
    Our proposed modified preservation standard--``consistent with the 
goals of maintaining stable or increasing breeding populations in all 
eagle management units, and persistence of local populations throughout 
the geographic range of both species''--seeks to ensure the persistence 
of bald and golden eagle populations over the long term with sufficient 
distribution to be resilient and adaptable to environmental conditions, 
stressors, and likely future altered environments. To implement that 
objective in a consistent, analytical, scientifically supportable 
manner, these key terms mean: ``Population'' means eagle management 
unit (EMU); ``persist'' means stable with 2009 as the baseline; ``long-
term'' means 100 years; and ``sufficient distribution'' means avoiding 
the extirpation of local area populations (LAPs) by limiting Service-
authorized take rates to less than or equal to 5% of each LAP (see 
discussion below). We have estimated that an EMU population that meets 
these criteria has an approximately 50% (in the liberal DPEIS 
alternatives) or 80% (in the conservative DPEIS alternatives) 
likelihood of being ``resilient and adaptable to environmental 
conditions and stressors and likely future environments'' under the 
take rates analyzed, and assuming other conditions remain as they were 
over the time period the biological data used in the models were 
gathered.
    The above criteria are used to populate national-, EMU-, and LAP-
scale population models that allow the Service to determine take limits 
that are compatible with the preservation of eagles in this rule and 
associated DPEIS. In defining the eagle preservation standard in this 
way, and analyzing the effects of take within those take limits in the 
DPEIS, the analytical burden for each permit decision is greatly 
reduced, allowing the Service to make informed permitting decisions at 
an expedited rate.
    The regulation revisions we are proposing are based on the amended 
definition of the preservation standard and the adoption of a 
relatively conservative approach to estimating population values and 
sustainable take rates based on the best available data and the 
Service's level of risk tolerance in the face of uncertainty. This 
relatively conservative approach is described below, and also in much 
more detail, along with alternative approaches and the scientific and 
technical information that underpins their analyses in the Status 
Report and the draft DPEIS.
    We estimate there are about 143,000 bald eagles in the United 
States (including Alaska), and that populations continue to increase. 
Given their continued population growth above the 2009 baseline, there 
is considerable capacity to sustain take of bald eagles. Under our 
proposed management approach, the annual take limit would be 4,200 bald 
eagles nationwide. This compares to a take limit of 1,103 established 
in 2009.
    We estimate golden eagles currently number about 40,000 individuals 
in the United States (including Alaska), and populations have been 
relatively stable around that size since the mid-1960s. We estimate the 
carrying capacity of golden eagles nationwide to be 73,000. We also 
have data indicating that population size is limited by high levels of 
anthropogenic mortality (i.e., populations could be larger were it not 
for ongoing high levels of unpermitted take), and that adding 
additional mortality will likely cause populations to decline to a 
lower level. As a consequence, there is no opportunity for authorizing 
additional unmitigated take

[[Page 27938]]

of this species without changing the population objective to a level 
lower than the 2009 baseline. Under our proposed management framework, 
we would operate under the conservative assumption that there is no 
sustainable take, and take limits would be zero, without compensatory 
mitigation to offset the take. However, even using the median values, 
rather than the 20th quantile used in our preferred, conservative 
approach, take of golden eagles nationwide would still be set at zero, 
unless the take is offset by compensatory mitigation.
    We are considering realigning EMUs to better reflect regional 
populations and migration patterns of both species. The Service and its 
partner agencies manage for migratory birds based on specific migratory 
route paths within North America (Atlantic, Mississippi, Central, and 
Pacific). Based on those route paths, State and Federal agencies 
developed the four administrative flyways that administer migratory 
bird resources. Both bald and golden eagles move over great distances 
seasonally and across years. There is a well-described annual seasonal 
migration of both species of eagles from northern regions southward in 
winter. An annual northward migration of bald eagles from southern 
regions is well-documented, and a similar northward migration of golden 
eagles that winter in southern regions has been recently discovered. 
The adoption of the administrative flyways as EMUs would better address 
geographic patterns of risk given the seasonal movement patterns of 
both species.
    We propose to use the flyways as the EMUs for both species--with 
some modifications. Banding data recovery records indicate that banded 
eagles of both species were recovered more frequently in the same 
flyway EMU than in the same 2009 EMU. Given the relatively small size 
of the eastern golden eagle population and uncertainty about the 
distribution of that population across the two eastern flyways, we are 
proposing to combine the Mississippi and Atlantic Flyways into one 
management unit for golden eagles. For bald eagles, data indicate the 
Pacific Flyway should be split into three management units: Alaska, 
Pacific flyway north of 40 degrees N latitude to the Canadian border, 
and Pacific flyway south of 40 degrees N latitude to the Mexican 
border. See the draft DPEIS for maps of the current and proposed EMUs.
    To monitor eagle populations in the future and assess whether 
different take thresholds are appropriate, our plan, assuming we have 
sufficient appropriated funding, is to conduct surveys on a 6-year 
rotation: One set of paired summer-winter golden eagle surveys in the 
first and second and fourth and fifth years of each assessment period, 
and to conduct bald eagle surveys in years three and six.
    Because the flyway management scale is larger than the EMUs 
currently in use, EMU take limits would also increase (for bald eagles; 
golden eagle take limits would be zero in all management units, unless 
offset), with the result that adoption of the flyways as EMUs could be 
less protective of eagle populations at more local scales. These 
proposed regulations include two provisions designed to increase 
protection of eagles at more local scales. First, as noted earlier, we 
propose to modify the preservation standard of the Eagle Act to include 
the goal of maintaining the persistence of local populations throughout 
the geographic range of both species. Also, we are proposing to codify 
this new definition in the regulations at 50 CFR 22.3. The definition 
would read: ``Compatible with the preservation of the bald eagle or the 
golden eagle'' means ``consistent with the goals of maintaining stable 
or increasing breeding populations in all eagle management units, and 
persistence of local populations throughout the geographic range of 
both species.''
    In addition to codifying that modified definition for the 
preservation standard, these proposed regulations would also enhance 
protection of eagles at the local scale by incorporating a local area 
population (LAP) cumulative effects analysis into the permit issuance 
criteria. Currently, the LAP analysis is contained in a guidance 
document (Appendix F of the Eagle Conservation Plan Guidance, Module 
1--Land-based Wind Energy (ECPG) (USFWS, 2013).
    The LAP analysis involves compiling information on permitted 
anthropogenic mortality of eagles within a specified distance (derived 
from each eagle species' natal dispersal distance) of the permitted 
activities' boundary. If permitted eagle take exceeds 1% of the 
estimated population size of either species within the LAP area, 
additional take is of concern. If take exceeds 5% of the estimated 
population size within the LAP area, additional take is considered 
inadvisable unless the permitted activity will actually result in a 
lowering of take levels (e.g., permitting a repowered wind project 
that, in its repowered form, will take fewer eagles than before 
repowering).
    The numerical size of the LAP is derived by expanding estimated 
eagle density at the eagle management unit scale, as set in the 2009 
Final Environmental Assessment on the Eagle Take Rule, by the size of 
the LAP area. We acknowledge that this approach is somewhat simplistic 
for at least two reasons. First, as described previously, the eagle 
density estimates come from nesting or late-summer population surveys 
and do not account for seasonal influxes of eagles that occur through 
migration and dispersal. Second, this approach assumes that eagle 
density is uniform across the EMU, which is not the case. In most cases 
the first simplification leads to an underestimate of true density, 
particularly in core wintering areas during the non-breeding months, 
and as such serves as an added buffer against overharvest of local 
nesting eagles. Assuming uniform density leads to greater relative 
protection of areas with higher than average eagle density within an 
EMU, and less relative protection in areas of lower density. Ideally, 
over time and with better information on resource selection and factors 
accounting for variation in density, as well as improved knowledge of 
seasonal changes in eagle density and population-specific movement 
patterns, the LAP analysis can be improved to more realistically 
account for the true LAP impacted by projects under consideration. For 
now, however, LAP take thresholds allow the Service to authorize 
limited take of eagles while favoring eagle conservation in the face of 
the uncertainty.
    Since publication of the ECPG, the Service has updated natal 
dispersal distances (the linear distance between a bird's location of 
origin and its first breeding or potential breeding location) for both 
eagle species that are used to calculate LAPs. Those distances are 
currently 86 miles for bald eagles or 109 miles for golden eagles. 
These could change if additional data indicate the need for adjustment. 
The LAP cumulative effects analysis is described in more detail in the 
Status Report.
    Currently the LAP cumulative effects analysis is used as guidance. 
Under these proposed regulations, the LAP analysis would be required as 
part of our review of each permit application. In order to issue a 
permit we must find that cumulative authorized take does not exceed 5% 
of the LAP, or we must demonstrate why allowing take to exceed that 
limit is still compatible with the preservation of eagles. One 
situation where we may issue a permit that would result in authorized 
take above 5% of the LAP is if a project is already in operation and 
the permit conditions would result in a reduction of take or 
compensatory mitigation that offsets

[[Page 27939]]

impacts to eagles within the LAP. Unpermitted levels of eagle take 
within the LAP, if known, would also be considered in assessing the 
potential effects of the permit on the LAP.
    Incorporation of the LAP 5% limit on authorized take into the 
regulations would facilitate individual permit decisions; instead of 
needing to evaluate under an independent NEPA analysis each project in 
the context of other authorized take within the LAP, along with the 
level of unauthorized take--which is difficult or impossible to 
precisely determine--we will have already analyzed the effects of 
authorizing take of up to 5% of the LAP in the draft DPEIS for these 
proposed regulations, along with a qualitative analysis of unauthorized 
take, and determined that it is compatible with the preservation of 
eagles.
    The primary aim of requiring this LAP analysis is to prevent 
significant declines in, or extirpation of, local nesting populations. 
However, there is also increasing evidence of a strong tendency in both 
species of eagle to return to non-breeding areas (wintering areas, 
migration routes, and staging areas) (McIntyre et al. 2008, Mojica et 
al. 2008). The LAP take limits also provide protection from permitting 
cumulatively high levels of take of these eagles that winter or migrate 
through the LAP area.
    The take authorized within the LAP take limits is in addition to an 
average background rate of anthropogenic mortality (ongoing human-
caused eagle mortality, most of which is not currently permitted.) For 
golden eagles, background anthropogenic mortality is about 10% (see the 
Status Report). Thus, total anthropogenic mortality for a LAP 
experiencing the maximum permitted take rate of 5% averages about 15%. 
We do not have similar mortality information for bald eagles. While we 
do not know exactly what level of unauthorized anthropogenic take of 
bald eagles is occurring, we are reasonably certain that the take we 
authorize for bald eagles would also be over and above a level of 
preexisting ongoing unpermitted take. The level of ongoing unauthorized 
take of bald eagles may be similar to that of golden eagles; however, 
bald eagles have a maximum potential growth rate about twice that of 
golden eagles and thus are more resilient to take. As part of the LAP 
analysis for both species, Service biologists would consider any 
available information on unpermitted take occurring within the LAP 
area; evidence of excessive unpermitted take would be taken into 
consideration in evaluating whether to issue the permit.
    The Service considered developing specific eagle population size 
goals (other than the 2009 baseline) for each EMU and then using those 
targets to inform permit decisions within the EMUs. However, that 
approach is not feasible at this time given the technical and 
logistical complexities of working with State agencies and tribes to 
set population objectives at this scale within the timeframe of this 
action and the lack of fine-scale information on eagle populations that 
would be necessary.

Nonpurposeful (Incidental) Take Permits (50 CFR 22.26)

    The Service proposes to change the name of what we have been 
calling ``nonpurposeful take permits'' to ``incidental take permits.'' 
Incidental take is what Sec.  22.26 permits authorize. We originally 
called them ``nonpurposeful take'' permits in order to avoid confusion 
with incidental take permits issued under the ESA for threatened and 
endangered species. However, we believe the term ``nonpurposeful'' has 
also caused confusion because it is not a commonly used word. We now 
see advantage in using the term ``incidental'' because the meaning of 
that term is better understood. Moreover, now that this permit system 
is relatively well established, the potential for confusion with the 
ESA incidental take permit system is much reduced. The change in 
nomenclature does not in any way affect the circumstances and manner in 
which these permits will be issued.
    We propose to reduce the types of incidental take permits we can 
issue under Sec.  22.26 from two to one. There would no longer be 
separate categories for standard and programmatic permits. Having two 
separate categories has sometimes led to confusion. It is not always 
possible to distinguish between what should be authorized under a 
programmatic versus a standard permit. Also, the term ``programmatic'' 
in the sense we have been using it is sometimes misunderstood because 
it differs from how ``programmatic'' has been typically used in the 
regulatory arena. ``Programmatic'' in the more traditional sense means 
``following or relating to a plan or program.'' While we anticipate 
sometimes issuing permits to cover the effects of multiple activities 
within a given program (such as a military installation), our 
experience so far is that the more complex requests for permits we have 
had to date have been for single, long-term activities that have the 
potential to periodically take one or more eagles over the life of the 
project. To reduce confusion, we are proposing to eliminate the 
distinction between standard and programmatic permits. All Sec.  22.26 
permits would be simply ``eagle incidental take permits'' or just 
``incidental take permits.''
    Under the current (2009) regulations, the Service issues 
programmatic permits predicated on implementation of advanced 
conservation practices (ACPs) developed in coordination with the 
Service. ACPs are defined as scientifically supportable measures 
approved by the Service that represent the best available techniques to 
reduce eagle disturbance and ongoing mortalities to a level where 
remaining take is unavoidable (50 CFR 22.3).
    In contrast, applicants for standard permits under the current 
regulations must reduce potential take to a level where it is 
``practicably unavoidable'' (emphasis added). So, currently, 
programmatic permit applicants have a higher standard, at least 
theoretically. In reality, the term ``unavoidable'' is more ambiguous 
than it seems in theory; there is no clear distinction in practice 
between ``practicably unavoidable'' and ``unavoidable.'' We are 
proposing to apply the ``practicability standard'' to all Sec.  22.26 
permits.
    We propose to revise the definition of ``practicable'' by adopting 
the definition from the Service's proposed mitigation policy (see 81 FR 
12379, March 8, 2016), slightly modified for specific application to 
eagle permits. The new definition would read: ``available and capable 
of being done after taking into consideration existing technology, 
logistics, and cost in light of a mitigation measure's beneficial value 
to eagles and the activity's overall purpose, scope, and scale.'' This 
proposed revised definition captures the essential elements of the 
current definition, while promoting a consistent approach to how the 
Service applies compensatory mitigation requirements.
    Because the concept of ACPs is based on reducing take to the point 
where it is unavoidable--versus ``practicably unavoidable''--and 
applied to the category of programmatic permits, these proposed 
regulations remove the requirement for ACPs. As discussed above, all 
permittees would be required to avoid and minimize impacts to eagles to 
the maximum degree practicable. Although the ACP requirement would be 
removed, the Service would require potential permittees to implement 
all practicable best management practices and other measures and 
practices that are reasonably likely to reduce eagle take. Permit 
applicants that cannot reduce or compensate for take to levels that are 
compatible with eagle

[[Page 27940]]

preservation will not qualify for a permit.
    We believe the 5-year maximum permit term for permits is 
unnecessarily burdensome for entities engaged in long-term actions that 
have the potential to incidentally take bald or golden eagles over the 
lifetime of the activity. It has had the unintended effect of 
discouraging proponents of long-term activities from applying for 
permits, despite the risk of violating the statute. With longer-term 
permits, the Service has the ability to build more effective adaptive 
management measures into the permit conditions. This approach would 
provide a degree of certainty to project proponents because they would 
have a greater understanding of what measures may be required to remain 
compliant with the terms and conditions of their permits in the future. 
This increased level of certainty allows companies to plan accordingly 
by allocating resources so they are available if needed to implement 
additional conservation measures to benefit eagles and maintain their 
permit coverage.
    Although killing, injuring, and other forms of take of eagles are 
illegal without a permit, the Service cannot require any entity to 
apply for an eagle take permit (except under legal settlement 
agreements). Some project proponents build and operate without eagle 
take permits even in areas where they are likely to take eagles. When 
such building occurs, the opportunity to achieve avoidance, 
minimization, and other mitigation measures is lost. The Service 
believes that permitting long-term activities that are likely to 
incidentally take eagles, including working with project proponents to 
minimize the impacts and secure compensatory mitigation, is far better 
for eagle conservation than having companies avoid the permitting 
process altogether because they perceive the process as overly onerous.
    Under these proposed regulations, the Service would evaluate each 
long-term permit at no more than 5-year intervals. These evaluations 
would reassess fatality rates, effectiveness of measures to reduce 
take, the appropriate level of compensatory mitigation, and eagle 
population status. Additional commitments with regard to conservation 
measures may be required of long-term permittees based on the 5-year 
permit evaluations. In 2013, when the maximum term of programmatic 
permits was extended from 5 to 30 years (a change subsequently vacated 
by court order in 2015), language was included in the regulations 
limiting additional conservation measures that could be required of the 
permittee to those contemplated at the time the permit was issued. 
However, that language was based on the requirement that all 
programmatic permittees would be required to implement advanced 
conservation practices that reduce take to the point where it is 
unavoidable. Under this proposed rule, long-term permittees would be 
subject to the same criterion as holders of standard permits: They 
would be required to undertake all practicable measures to reduce take 
to the point where any remaining take is unavoidable. To ensure that 
eagles are adequately protected, based on the results of the 5-year 
evaluations, after negotiation with the permittee, the Service may 
require long-term permittees to undertake additional conservation 
measures other than those originally contemplated, if they are both 
practicable and reasonably likely to reduce risk to eagles based on the 
best scientific information available.
    To recoup the cost of processing longer-term permits, which are 
generally complex due to the need to develop robust adaptive management 
measures, we propose to assess a $36,000 permit application processing 
fee for eagle incidental take permits of 5 years duration or longer. 
The permit processing fee for 5-year programmatic permit applications 
is $36,000 currently. A commercial applicant for an incidental take 
permit of a duration less than 5 years would pay a $2,500 permit 
application processing fee, an increase from the current fee of $1,000 
for programmatic permits and $500 for standard permits. The higher fee 
better reflects the costs of processing those permits. The amendment 
fee for those permits would increase from $150 to $500. The incidental 
take permit application processing fee for homeowners would remain $500 
and the amendment fee for those permits would also remain unchanged at 
$150. The proposed higher fees for commercial entities would recover a 
larger portion of the actual cost to the Service, including technical 
assistance provided to the potential applicant by the Service prior to 
receiving the actual permit application package. Commercial entities 
have the opportunity to recoup the costs of doing business by passing 
those costs on to their customers. For homeowner permits, the fees 
would remain the same, even though Federal agencies are directed to 
recoup the full costs of processing permits. The reality is that many 
of the homeowners who justifiably need eagle permits would not be able 
to pay the actual full cost to the Service of providing technical 
assistance to the homeowner and processing their permit applications.
    We propose to assess a $15,000 user fee called an Administration 
Fee every 5 years for long-term permits. This fee would cover the cost 
to the Service of conducting the 5-year evaluation and developing any 
appropriate modifications to the permit.
    The Service has developed data standards, including protocols for 
pre-construction eagle surveys and a fatality prediction model for wind 
energy generation facilities. We propose to require that wind energy 
generation facility permittees use these models and protocols, which 
are contained in the Eagle Conservation Plan Guidance Module 1--Land-
based Wind Energy (USFWS, 2013) (``ECPG''), available at: https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf. These standards include the steps 
described in ECPG Appendix B for site-assessment prior to siting 
projects; pre-construction survey requirements in ECPG Appendix C; and 
the fatality prediction model from ECPG Appendix D. We are proposing to 
incorporate these standards by reference in accordance with 1 CFR part 
51. These standards will also be available in hard copy upon request 
from the agency contact listed above.
    The requirement to conduct surveys, fatality predictions, and 
monitoring using Service-approved ECPG protocols for wind energy 
generation facilities, and potentially for other industries in the 
future, will result in more efficient permitting decisions by the 
Service. Submission of inadequate data, or data gathered using methods 
the Service cannot verify to be sound, has resulted in significant 
extra work and time from our staff to assess wind energy project 
impacts.
    We recognize that the model recommended in the ECPG for predicting 
fatalities is considered by some to be overly simplistic in its current 
form. However, the use of standard protocols is an essential component 
of the Service's adaptive management process for the eagle permit 
program, which employs feedback loops between the initial survey data, 
the fatality prediction model, and the post-construction fatality 
estimates. Data from the latter process can be used to formally improve 
the fatality prediction model, thereby increasing the performance and 
complexity of the model as well as the Service's ability to accurately 
predict project impacts. If the Service's protocols are not followed, 
combining data from multiple projects is difficult if

[[Page 27941]]

not impossible, and the Service and regulated community loses the 
ability to learn from the permitting process. Moreover, the Service has 
no formal way to improve the fatality prediction for a project that 
doesn't use our protocols in the future, thus those projects may have 
to endure higher fatality predictions over the life of the project than 
would otherwise be the case. Finally, the Service is not precluding 
permit applicants from collecting other data or using other models to 
assess risk, we are only requiring that the Service's protocols be 
among those that are used.
    While we have not officially issued fatality prediction models or 
pre-application monitoring protocols for other activities, or finalized 
post-permitting monitoring protocols for any single activity, the 
Service has enough information about eagle behaviors and movements to 
recommend and approve monitoring protocols for activities other than 
wind energy generation on a project-specific basis during the technical 
assistance process. We encourage project proponents to coordinate with 
the Service as early as possible in the project planning process to 
ensure they are aware of any protocols we have recommended and that 
they use them appropriately. Our goal is to establish additional 
formalized monitoring protocols for industries other than wind energy 
in the future.
    Most permittees will be required to monitor for purposes of 
assessing whether and how much take occurs under the permit. Reported 
take would be based on performance of permit conditions establishing 
surveying and monitoring protocols. For permits for disturbance, such 
monitoring is likely to consist of regular visits to the proximity of 
the nest site or other important eagle-use area where disturbance is 
likely to occur to observe whether eagles are using the area. We expect 
that most long-term permits would authorize lethal take rather than 
disturbance. Holders of permits that authorize eagle mortalities would 
be required to use approaches to searching for injured and killed 
eagles and for estimating total take that use statistically rigorous, 
unbiased, estimators. Permittees would be required to document and 
report all eagles that are found, the methodologies employed to search 
for them (including whether or not they were detected as part of a 
formal survey methodology), and the methods used to estimate what the 
observed carcasses actually represent (the probability of detection). 
``Observed take'' as used in these regulations refers to the amount of 
take that is arrived at based on adherence to these protocols.
    The Service defines ``mitigation'' to sequentially include: 
Avoidance, minimization, rectification, reduction over time, and 
compensation for negative impacts. The 2009 regulations lack 
specificity with regard to when compensatory mitigation will be 
required, and the preamble discussion of compensatory mitigation was 
somewhat inconsistent. In reference to nonpurposeful take permits, the 
preamble to the 2009 regulations contained the following language: 
``Additional compensatory mitigation will be required only (1) for 
programmatic take and other multiple take authorizations; (2) for 
disturbance associated with the permanent loss of a breeding territory 
or important traditional communal roost site; or (3) as necessary to 
offset impacts to the local area population. Because permitted take 
limits are population-based, the Service has already determined before 
issuing each individual take permit that the population can withstand 
that level of take. Therefore, compensatory mitigation for one-time, 
individual take permits will not typically be necessary for the 
preservation of eagles'' (74 FR 46844, September 11, 2009). Regarding 
the Sec.  22.27 nest take permits, we indicated in the preamble that we 
would require compensatory mitigation for all permits except those 
issued for safety emergencies (74 FR 46845, September 11, 2009).
    The Service also addressed compensatory mitigation in the 2009 FEA, 
which contained the following language: ``For most individual take 
permits resulting in short-term disturbance, the Service will not 
require compensatory mitigation. The population-based permitting the 
Service will propose is based on the level of take that a population 
can withstand. Therefore, compensatory mitigation for individual 
permits is not necessary for the preservation of eagles. However, the 
Service will advocate compensatory mitigation in the cases of nest 
removal, disturbance or [take resulting in mortality] that will likely 
incur take over several seasons, result in permanent abandonment of 
more than a single breeding territory, have large-scale impacts, occur 
at multiple locations, or otherwise contribute to cumulative negative 
effects'' (USFWS, 2009).
    Because the 2009 regulations did not incorporate specific 
compensatory mitigation provisions, the Service has required 
compensatory mitigation on a case-by-case basis somewhat 
inconsistently, particularly for bald eagles, which has at times 
resulted in differing treatment of, and uncertainty for, permit 
applicants. Accordingly, this proposed rule includes standardized 
requirements for compensatory mitigation. In addition to the mitigation 
requirements set out in this rule, the Service will implement these 
regulations in a manner consistent with Service, Departmental, and 
Presidential mitigation policies.
    Since 2009, take limits for golden eagles have been set at zero 
throughout the United States. Accordingly, all permits for golden eagle 
take would exceed the take limits, and so must incorporate compensatory 
mitigation in order to authorize that take. A permittee would have to 
compensate for authorized take within the same EMU (except that we 
would allow for compensatory mitigation of take of Alaskan golden 
eagles throughout the migration and wintering range in the interior 
western United States and northern Mexico).
    The best available information indicates that ongoing levels of 
human-caused mortality of golden eagles likely exceed sustainable take 
rates, potentially significantly. As a result, compensatory mitigation 
for any authorized take of golden eagles that exceeds take thresholds 
would be designed to ensure that take is offset at a greater than one-
to-one ratio to achieve a net benefit to golden eagles to achieve an 
outcome consistent with the preservation of golden eagles as the result 
of the permit. Based on the uncertainty in the effectiveness of a 
particular compensatory mitigation practice, we are likely to require 
further adjustments to mitigation ratios to provide a buffer in the 
event that the planned mitigation is less effective than anticipated.
    Under the various mitigation policies that govern Service 
permitting actions, compensatory mitigation must be in accordance with 
the management goal for the protected resource or species. For take 
that is within EMU take limits, compensatory mitigation is generally 
not needed because we can permit that take and still achieve our 
management goal. Cumulative authorized take exceeding 5% of the LAP 
would also generally require compensatory mitigation to ensure our 
eagle preservation standard is being met. An exception would be when 
the EMU take limit is not exceeded (i.e., currently the case for bald 
eagles in all EMUs), the permitted take is already occurring, and the 
permit conditions would result in a reduction of take.
    We may also require compensatory mitigation when there is an 
unusually

[[Page 27942]]

high level of unauthorized eagle mortality in the LAP (for example, 
when the Service has information indicating that unauthorized take 
exceeds 10% of the LAP). The Service has no data to indicate that 
ongoing unauthorized take of bald eagles is less than that of golden 
eagles, and proposes to apply the LAP analysis and assessment of any 
known ongoing unauthorized take to bald eagles as well as golden 
eagles, as we have been doing while the LAP analysis remains guidance. 
Although exceeding 5% permitted take of the LAP will have significantly 
less dramatic effects to local bald eagle populations, States, tribes, 
and localities have communicated their interest in seeing regulatory 
safeguards to protect local bald eagles as well as golden eagles. In 
the near future, it is unlikely that cumulative authorized take of 
local area populations of bald eagles will exceed 5% anywhere in the 
country. The Service will continue to collect data to refine our 
understanding of cumulative mortality on both eagle species and may 
adjust take rates in the future.
    Under these proposed regulations, the LAP analysis would be the 
formalized approach to documenting whether compensatory mitigation may 
be necessary to maintain the persistence of local eagle populations. 
However, there are other factors, particularly long-term and 
cumulatively, that could also create the need for compensatory 
mitigation to better protect or enhance populations. For example 
climatic changes can have direct and indirect effects on species 
abundance and distribution, and may exacerbate the effects of other 
stressors, such as habitat fragmentation and diseases. The conservation 
of habitats within ecologically functioning landscapes is essential to 
sustaining the long-term persistence of populations. To ensure the 
Service has the tools to address such circumstances, this proposed rule 
would allow the Service to require compensatory mitigation ``if 
otherwise necessary to maintain the persistence of local eagle 
populations throughout their geographic range.''
    The Service will encourage the use of in-lieu fee programs, 
mitigation and/or conservation banks, and other established mitigation 
programs and projects. We intend to facilitate the establishment of an 
in-lieu fee program to allow permit applicants to contribute to a 
compensatory mitigation fund as an alternative to developing individual 
mitigation measures for each project. All compensatory mitigation must 
comply with principles and standards set forth in Service and 
Departmental policy. Per these principles and standards, compensatory 
mitigation is considered after all appropriate and practicable 
avoidance and minimization measures are applied and must achieve the 
following: Be sited to address broader ecological contexts; adhere to a 
mitigation planning goal; use best available science to ensure 
effectiveness; be additional to any existing or foreseeably expected 
conservation efforts; be durable and persist for at least the time-
frame of the impacts; incorporate adaptive management; and account for 
uncertainty and risk. In approving compensatory mitigation mechanisms 
and actions, the Service will ensure the application of equivalent 
ecological, procedural, and administrative standards for all 
compensatory mitigation mechanisms. The Service prefers that 
compensatory mitigation is conducted prior to when the impacts of the 
action occur. Conservation banking can provide a source of advance 
credits.
    Predictions about the effectiveness of compensatory mitigation 
measures have varying degrees of uncertainty. Under the current 
framework, the Service has required a relatively high degree of 
confidence in the effectiveness of very few compensatory mitigation 
options. We will consider compensatory mitigation measures and programs 
that face more risk and uncertainty provided mitigation accounting 
systems factor in risk and adjust metrics, mitigation ratios, and the 
amount of required mitigation to account for uncertainty.
    Where compensatory mitigation will be required, the applicant must 
commit to the funding and method that will be used prior to or upon 
permit issuance. For long-term permits, permittees would be required to 
provide offsetting mitigation to compensate for predicted take over 5 
years. If no observed take has occurred in the first 5 years, the 
permittee need not pay for any additional mitigation. If reliable 
reported data demonstrates that a given permit holder/project is 
causing fewer impacts to eagles than originally permitted (e.g. actual 
take of eagles is lower than predicted), permittees can carry forward 
``unused'' compensatory mitigation credits to the next 5-year review 
period.
    We are proposing a change to the prioritization criteria that 
govern the order in which the Service will prioritize authorization of 
take if EMU take limits are approached. The priority after safety 
emergencies for Native American take for religious purposes that 
depends on take of wild eagles (and as such cannot be met with eagle 
parts and/or feathers from another source, such as the National Eagle 
Repository) will be amended slightly to apply to any increased need in 
take for religious purposes. In such cases, that take would not be part 
of the current baseline. Historical tribal take for religious use 
requiring take of eagles from the wild that has been ongoing, but not 
authorized, does not usually need to be prioritized because it is part 
of the baseline. Thus, any authorization of such previously 
unauthorized take would not affect EMU take limits. We also propose to 
delete the reference to rites and ceremonies because traditional take 
for religious and cultural purposes may not be limited to, or properly 
characterized as being part of, specific rites and ceremonies.
    We propose changing the prioritization order by removing the 
priority for renewal of programmatic permits, since the regulations 
would no longer contain a separate category for programmatic permits.
    The definition of ``low-risk'' projects that was established in the 
duration rule, which was subsequently vacated by the August 2015 
district court decision (Shearwater v. Ashe, No. 5:14-cv-02830 LHK 
(Sep. 16, 2015), was counter-productive. ``Low-risk'' was defined in a 
footnote to 50 CFR 13.11(d)(4) as a project or activity that is 
unlikely to take an eagle over a 30-year period and the applicant for a 
permit for the project or activity has provided the Service with 
sufficient data obtained through Service-approved models and/or 
predictive tools to verify that the take is likely to be less than 0.03 
eagles per year. This definition covers only those projects where take 
is essentially negligible, and, therefore, the project does not require 
a permit. The Service sees utility in redefining ``low-risk'' to 
include projects with a slightly higher probability of taking eagles, 
but which cumulatively will still be compatible with eagle management 
objectives.
    However, despite seeking input from the public and considerable 
staff effort, we were unable to develop a definition of ``low-risk'' 
that could be applied throughout the United States while achieving the 
desired goals for such a category. The Service considered basing the 
low-risk category on (1) a flat number of eagles predicted to be taken, 
(2) a percentage of the local area population (LAP), (3) a hybrid of 
those two, and (4) the geographic and physical features of the area 
where the project will be located. Each of these approaches produced 
conflicting results due to the significant discrepancies that exist 
between eagle population densities and resilience, habitat variability, 
and project scales. Accordingly, we are not proposing a revised 
definition for low-

[[Page 27943]]

risk projects in this proposed rule. We will continue to consider ways 
that a category of lower risk projects could be defined for use in the 
future. If you have suggestions for how to define ``low-risk'' or low-
impact'' take of eagles, including how a general permit authorization 
should work or other approaches for authorizing such take, please 
submit them as indicated under ADDRESSES. While such comments would be 
outside the scope of this rulemaking action, we would keep them for 
consideration if we decide to pursue further rulemaking in the future.

Eagle Nest Take Permits (50 CFR 22.27)

    Under the current Sec.  22.27 eagle nest take regulations, the 
Service can issue permits for removal, relocation, or destruction of 
eagle nests where (1) necessary to alleviate a safety emergency 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. Only inactive nests may be taken except in the case of safety 
emergencies. Inactive nests are defined by the continuous absence of 
any adult, egg, or dependent young at the nest for at least 10 
consecutive days leading up to the time of take.
    As with Sec.  22.26 incidental take permits, we propose to 
eliminate the distinction between programmatic and standard permits for 
Sec.  22.27 nest take permits. The permit fee for removal or 
destruction of a single nest will remain at $500. A commercial 
applicant for a nest take permit for a single nest would pay a $2,500 
permit application processing fee, an increase from the current fee of 
$500 for standard permits and $1,000 for programmatic permits. The 
amendment fee for those permits would also increase from $150 to $500. 
For permits to take multiple nests, the fee would be 5,000 versus 1,000 
for programmatic permits currently. For homeowners, the nest take 
permit application processing fee and amendment fee would not change.
    We are also proposing a number of relatively minor revisions to the 
nest take permit regulations at 50 CFR 22.27 and several revisions to 
definitions in 50 CFR 22.3 that apply to nest take permits. First, we 
propose to change terminology referencing the status of nests to better 
comport with applicable terms used in scientific literature. Nests that 
are not currently being used for reproductive purposes would be defined 
as ``alternate nests,'' while nests that are being used would be ``in-
use nests.'' Some commenters suggested the latter be called ``occupied 
nests,'' but we believe that term would cause confusion because nests 
are in use for breeding purposes prior to being physically ``occupied'' 
by nestlings or an incubating adult. Under our proposed definition, an 
``in-use nest'' means ``a bald or golden eagle nest characterized by 
the presence of one or more eggs, dependent young, or adult eagles on 
the nest in the past 10 days during the breeding season.'' This 
definition includes the period when adults are displaying courtship 
behaviors and are building or adding to the nest in preparation for 
egg-laying. We would define ``alternate nest'' as ``one of potentially 
several nests within a nesting territory that is not an in-use nest at 
the current time.'' When there is no in-use nest, all nests in the 
territory are ``alternate nests.''
    We propose to revise the definition of ``eagle nest'' from ``any 
readily identifiable structure built, maintained, or used by bald 
eagles or golden eagles for the purpose of reproduction'' to ``any 
assemblage of materials built, maintained, or used by bald eagles or 
golden eagles for the purpose of reproduction.'' The words ``readily 
identifiable'' did nothing to clarify when a structure was or was not a 
nest since a structure might appear to be just a pile of sticks to one 
person, or an osprey nest to a second person, but clearly an eagle nest 
to someone familiar with eagle nests. The confusion caused by the words 
``readily identifiable'' sometimes put in jeopardy nests in the early 
stages of being built, or nests that are used from year to year but are 
substantially damaged during the non-breeding season by wind or 
weather.
    We propose changes to enable the Service to issue a permit to 
remove an in-use nest to prevent a rapidly developing safety emergency 
that otherwise would be likely to result in bodily harm to humans or 
eagles while the nest is still in use for breeding purposes, instead of 
waiting until the emergency is exigent. Without this clarification, the 
Service has been faced with having to wait until the fully developed 
state of emergency had arrived, and the delay has sometimes been to the 
detriment of the eagles because, while the safety emergency developed, 
the breeding pair had the opportunity to lay eggs.
    Current regulations provide that the Service can issue a nest take 
permit for an inactive (proposed ``alternate'') nest that is built on a 
human-engineered structure and creates a functional hazard that renders 
the structure inoperable for its intended use. We propose to change 
this provision to also allow for removal of an in-use nest prior to 
egg-laying to prevent the foreseeable functional hazard from coming to 
fruition. The proposed regulatory language would allow nest removal at 
an earlier stage that may allow for the eagles to re-nest elsewhere 
while also preventing the nesting eagles from rendering the human-made 
structure inoperable.
    We also propose to remove the requirement that suitable nesting 
habitat be available in the area nesting population to accommodate 
displaced eagles for non-emergency nest take. The provision has been 
problematic because, in many healthy populations of bald eagles, 
suitable nest sites are all occupied. As part of the permit application 
review process, the regulations would retain consideration of whether 
alternate nest sites are available to the displaced eagles, but an 
affirmative finding would not be a requirement for issuing a permit.
    Also, we propose to change the scope of consideration to the 
``nesting territory,'' not the ``area nesting population,'' which is 
defined in current regulations as ``the number of pairs of golden 
eagles known to have a resting [sic] attempt during the preceding 12 
months within a 10-mile radius of a golden eagle nest.'' That 
definition was codified in 1982 when a new permit was established for 
removal or destruction of nests for resource development and recovery 
operations. In addition to the typo (i.e., ``resting''), this 
definition is problematic in the context of bald eagles, not only 
because it omits reference to bald eagles, but also because a 10-mile 
radius around a bald eagle nest has no particular biological 
significance. For both species of eagles, consideration of whether the 
nesting pair may be able to use a different nest should focus primarily 
on the pair's nesting territory. In some cases, that determination may 
require looking beyond any known alternate nests in order to verify 
that those nests are not actually part of a different pair's nesting 
territory. However, it will not always require surveys of the area 
within the 10-mile radius of the nest that would be removed. We propose 
the following definition for ``nesting territory'': ``the area that 
contains one or more eagle nests within the home range of a mated pair 
of eagles, regardless of whether such nests were built by the current 
resident pair.'' This definition would replace the current definition 
of ``territory.'' The two definitions are functionally similar, but the 
one we are proposing is more in line with terminology used in the 
biological community.

[[Page 27944]]

    Under the current regulations, if a nest containing viable eggs or 
nestlings must be removed, we require transfer of the nestlings or eggs 
to a permitted rehabilitator or placement in a foster nest. However, 
there are circumstances when such placement is simply not possible; for 
example, in Alaska the closest permitted rehabilitator may be a day's 
drive or more away. Nests with viable eggs or nestlings can be removed 
only in safety emergencies, and the requirement has sometimes meant 
that the Service could not legally issue a permit necessary to 
alleviate the safety emergency. To address this problem, we propose to 
retain the requirement that nestlings and viable eggs be transported to 
a foster nest or permitted rehabilitator, but add a provision allowing 
the Service to waive the requirement if such transfer is not feasible 
or humane. The Service will determine the disposition of the nestlings 
or eggs in that scenario. Euthanasia may sometimes be the most humane 
option.
    As with the prioritization criteria in Sec.  22.26, these 
regulations would amend the prioritization criteria for nest take 
permits to remove any priority for allocation of take to renewal of 
programmatic permits because that permit category will be removed. 
Also, the prioritization for Native American religious take would be 
amended in the same manner as for Sec.  22.26 incidental take permits 
(see earlier discussion).
    These proposed regulations adopt mitigation standards for taking 
eagles nests under Sec.  22.27 that are similar to those we are 
proposing for Sec.  22.26. The exception is that permits issued under 
paragraph (a)(1)(iv) must apply appropriate and practicable 
compensatory mitigation measures as specified in your permit to provide 
a net benefit to eagles if the permitted activity itself does not 
provide a net benefit to eagles. Permits issued under paragraph 
(a)(1)(iv) are not limited to situations involving a safety or health 
issue or an obstruction to a manmade structure; they can be issued to 
take alternate (currently called ``inactive'') nests for any reason as 
long as there will be a net benefit to eagles scaled to the effects of 
the nest removal. If the activity itself has a net benefit, 
compensatory mitigation would not be required. For example, a nest 
might be flooded during a riparian restoration project undertaken to 
provide improved habitat for eagles. Where the activity itself does not 
benefit eagles, the net benefit must be through compensatory 
mitigation.
    Several commenters suggested we eliminate the requirement for a 
``net benefit'' for permits issued under paragraph (a)(1)(iv). In 
general, we believe the requirement to provide a net benefit is 
appropriate, particularly now that we will promote the use of 
conservation banks, in-lieu fee programs, and other third-party 
arrangements to carry out the necessary measures to benefit eagles. 
These types of programs can leverage relatively small amounts of 
funding to provide significant benefits on the ground. Also, many nests 
for which permits are sought for removal are lower quality nests, not 
having been used in some time and degraded, or alternate nests just 
being built. In those cases, the amount of compensatory mitigation may 
be relatively low. Additionally, in populations with high eagle 
density, the biological value of a single nest to eagle populations 
tends to be lower. Data shows that productivity in highly saturated 
eagle populations decreases due to nests being built in less than ideal 
locations in relation to food sources and/or increased competition and 
fighting among nesting pairs. In such situations, the required net 
benefit would reflect that lower biological value.

Permit Application Fees (50 CFR 13.11)

    We also propose minor revisions to the permit application 
processing fee table in 50 CFR 13.11. We would remove the column for 
Administration Fees because those fees are applied only for eagle 
incidental take permits and not for any other type of Service permit 
listed in the table. The requirement for administration fees would be 
incorporated into Sec.  22.26. The table would also include the updated 
fees we are proposing for incidental take permit for commercial 
entities, long-term incidental take permits, nest take permits for 
commercial entities, and nest take permits for multiple nests.

Scope of Eagle Regulations (50 CFR 22.11)

    The Service would revise Sec.  22.11(c) to replace ``[Y]ou must 
obtain a permit under part 21 of this subchapter for any activity that 
also involves migratory birds other than bald and golden eagles, and a 
permit under part 17 of this subchapter for any activity that also 
involves threatened or endangered species other than the bald eagle'' 
with ``[A] permit under this part authorizes take, possession, and/or 
transport only under the Bald and Golden Eagle Protection Act and does 
not provide authorization under the Migratory Bird Treaty Act or the 
Endangered Species Act for the take, possession, and/or transport of 
migratory birds or endangered or threatened species other than bald or 
golden eagles.'' The original language was promulgated prior to the 
bald eagle being removed from the ESA List of Endangered and Threatened 
Wildlife as part of a final rule authorizing transport of eagle parts. 
The original intent of Sec.  22.11(c), as explained in the final rule 
published in the Federal Register, was that a permit holder 
transporting items that contained not only eagle parts, but also parts 
of other species protected by the Endangered Species Act or the 
Migratory Bird Treaty Act, into or out of the country would need to 
ensure he or she possessed the applicable permits for those protected, 
non-eagle species in order to legally transport the item. See 64 FR 
50467, September 17, 1999. However, this provision could be read to 
limit the Service's discretion to decide the appropriate manner of 
authorization for activities that affect other protected species 
outside the context of transportation of items containing eagle parts. 
For example, Sec.  22.11(c) could be read to preclude the Service from 
using intra-Service section 7 consultation to analyze and exempt non-
jeopardizing ESA take that may result from the Service's issuance of an 
Eagle Act permit to a project proponent. Thus, we are proposing to 
amend Sec.  22.11(c) to ensure it does not limit our discretion to 
apply the appropriate authorization under the ESA or the MBTA for 
activities that involve other species protected by those statutes.

Golden Eagle Nest Take Permits for Resource Development and Recovery 
(50 CFR 22.25)

    We are proposing several revisions to the regulations for permits 
for take of inactive golden eagle nests for resource development and 
recovery operations. The current regulations were codified in 50 CFR 
22.25 in 1983. We propose to amend them to use terminology that is 
consistent with the Sec.  22.27 eagle nest take permit regulations. Our 
intent in this rulemaking is to limit revisions to Sec.  22.25 to those 
necessary for consistency with Sec.  22.27, plus a few additional minor 
revisions, as explained below.
    The proposed revisions include changing ``inactive nest'' to 
``alternate nest'' and removing references to the ``area nesting 
population.'' As with Sec.  22.27 nest take permits (discussed above), 
the relevant area of consideration is the nesting territory. Rather 
than needing to evaluate whether there is suitable nesting habitat 
available within the area nesting population, the Service will consider 
whether alternate nests are available within the nesting territory. It 
may be

[[Page 27945]]

appropriate in some cases to survey golden eagle nests within the 10-
mile radius to determine whether nests assumed to be in the same 
territory as the one being removed are not actually in a different 
breeding pair's nesting territory. Loss of a nesting territory would 
not preclude the Service from issuing a permit, but such loss would be 
part of our consideration of whether the take is compatible with the 
preservation standard and what mitigation would be necessary.
    We propose to add the phrase ``and compatible with the preservation 
of golden eagles'' to paragraph (b)(4) of the Sec.  22.25 permit 
regulations. The introductory language for this permit regulation 
already specifies that the taking must be compatible with the 
preservation of golden eagles, but we believe it is important to 
clarify in paragraph (b)(4) that mitigation can be used to provide that 
compatibility. A final minor proposed revision is the addition of ``and 
monitoring'' to paragraph (b)(4). We do, as a matter of course, require 
monitoring as a condition of these permits, so it makes sense to 
clarify in the regulation that we may do that.
    Finally, we are proposing to replace the word ``feasible'' with 
``practicable'' in reference to the mitigation that will be required, 
consistent with Sec.  22.26, Sec.  22.27, and agency mitigation policy.

Response to Public Comments on the 2012 ANPR and 2014 Notice of Intent 
To Prepare an Environmental Assessment or an Environmental Impact 
Statement

NEPA Process on This Action

    Comment: NEPA analysis for individual projects is the biggest 
constraint associated with the current eagle take permit process. A 
programmatic analysis under NEPA would streamline and expedite the 
process for applicants and likely result in more participation by 
electric utilities and others, particularly for projects with 
relatively lower risk to eagles.
    Comment: The Service should conduct a nationwide programmatic NEPA 
analysis on the issuance of eagle permits for electric utilities so 
that subsequent permit applications can be categorically excluded from 
additional NEPA analysis.
    Service response: In addition to the cost to project developers, 
NEPA requirements for permitting individual projects have been 
responsible for a significant portion of the Service's time and effort 
in processing permit applications. We are developing a DPEIS in 
association with this rulemaking. The DPEIS programmatically analyzes 
eagle take within certain levels and the effects of complying with 
compensatory mitigation requirements to allow the Service to tier from 
the DPEIS when conducting project-level NEPA analyses. The DPEIS will 
cover the analysis of effects to eagles under NEPA if the project: (1) 
Will not take eagles at a rate that exceeds (individually or 
cumulatively) the take limit of the EMU (unless take is offset); (2) 
does not result in FWS authorized take (individually or cumulatively) 
in excess of 5% of the LAP; and (3) where the applicant agrees to use a 
FWS-approved offsetting mitigation bank to accomplish any required 
offset for the authorized mortality. Projects that do not meet these 
three criteria might still be authorized, but they would likely need to 
undergo individual NEPA review of their effects on eagles. We would 
also conduct a review of unpermitted take information available to us 
to assess whether the unpermitted eagle take in the LAP is excessive, 
and if that is the case, the project might still be authorized but may 
be subject to additional NEPA review.
    With regard to using a categorical exclusion for projects that pose 
a low risk to eagles, we investigated the possibility of developing a 
new categorical exclusion for such projects. However, we were unable to 
define low risk in a manner that was workable nationwide (see above 
discussion of the ``low-risk category'').
    Comment: The benefits of various activities that impact eagles 
should be analyzed in the EA or EIS. For example, renewable energy will 
benefit eagles and other wildlife by reducing carbon emissions, and 
utilities manage large water reservoirs that provide valuable foraging 
habitat for bald eagles.
    Service response: While the primary purpose of the DPEIS is to 
analyze the effects of the Federal actions being undertaken 
(establishment of eagle management objectives and revised permit 
provisions), to the degree that beneficial effects to eagles can be 
anticipated from categories of activities, the DPEIS broadly analyzes 
those effects.

Tribal Consultation

    Comment: To address the cultural value of eagles, the Service 
should consult face-to-face with the National Congress of American 
Indians and other tribal entities for their direction on this issue.
    Comment: In recognition of the continued lack of tribal engagement 
on these eagle matters, the Service should consult with and engage 
tribes, tribal religious and spiritual leaders, and tribal conservation 
and environmental experts regarding the development and implementation 
of Federal policies related to eagles.
    Comment: The Service should integrate tribal consultation 
throughout the NEPA process for this rulemaking and for individual 
permit applications to take eagles by providing tribes with clear 
proposed rulemaking and permit application information in a timely 
manner, disseminating information to a wide tribal audience, and 
ensuring that in-person consultation meetings are conducted.
    Comment: The NEPA analysis must consider the unique effects that 
eagle handling and eagle takes have on tribes. For example, topics for 
consideration should include: How a loss of eagles in an area where 
tribes are present will affect such tribes; the extent to which tribes 
can participate in handling the remains of eagles that are taken on 
reservation lands; protection of tribal cultural resources and historic 
properties by a project seeking a permit to take eagles; and whether 
procedures for handling eagle remains are consistent with tribal 
practices and beliefs.
    Comment: Early and meaningful consultation with tribes should occur 
so the Service can use traditional ecological knowledge.
    Service response: The Service reached out to all federally 
recognized tribes with a letter inviting government-to-government 
consultation in late 2013. We then met with interested tribes in person 
or through calls and Web conferences. A list of the tribes the Service 
met with is provided in Table 6.2-1 of the DPEIS. We would and will 
consider tribal ecological knowledge that is provided by tribes. We 
continue to encourage tribes that wish to consult on this rulemaking 
and eagle management in general to contact us to request meetings. In 
addition, the DPEIS associated with this rulemaking examines potential 
effects of this rulemaking on tribal resources, religion, and culture, 
and we encourage comment and feedback, (and consultation if requested) 
from tribes on that analysis.
    At the individual project level, we invite consultation with tribes 
in the vicinity of projects requesting permits, as well as tribes with 
historical ties to the area who have advised us of their interest in 
consulting with the Service.

Population Management Objectives

    Comment: The fact that the Service is on record in its FONSI on the 
2009 permit regulations stating that it will not

[[Page 27946]]

issue any permits for golden eagle take east of the 100th meridian is 
very troubling. Failure to do so will result in industrial wind 
development going ahead anyway without the NEPA analysis, public 
review, and conservation measures.
    Comment: The Service should retain its stance against permitting 
any take of golden eagles east of the 100th meridian. If the Service is 
contemplating altering this policy, it should not be an internal 
decision; a public process is warranted.
    Service response: We agree with the first commenter. The DPEIS 
analyzes the effects of issuing permits for golden eagle take across 
the United States, including east of the 100th meridian. The DPEIS 
analysis, with its associated public process, also addresses the 
concerns of the second commenter. We propose to issue permits to 
qualifying applicants in the eastern United States if the take will be 
offset and other required issuance criteria are met.
    Comment: Golden eagle populations should be managed using western 
and eastern take thresholds rather than Bird Conservation Region (BCR)-
based regional thresholds. Satellite telemetry data (published and 
currently being collected) suggest a great deal of mixing across BCR 
boundaries.
    Comment: Management of golden eagles by BCRs is problematic because 
most BCRs are large and span multiple jurisdictional boundaries; 
individual eagles may use multiple BCRs throughout the year; and a 
single BCR may host breeding, resident, and migratory eagles in 
different locations and/or times of year. Management should be at three 
scales: Flyway, state, and local.
    Comment: The Service should consider using the States as the Eagle 
Management Units (EMUs) for bald eagles.
    Comment: The Service should treat Alaska as one EMU for both bald 
and golden eagles. A lack of information regarding golden eagle 
populations in Alaska does not justify the imposition of a rigid ``no 
net loss'' standard. When combined with the emphasis on management by 
EMUs, the Service has established a disproportionately high threshold 
for the approval of golden eagle take permits. Accordingly, in Alaska, 
the Service should discontinue the ``no net loss'' standard and the 
application of multiple EMUs for golden eagles, and should instead 
provide for a flexible approach to acceptable compensatory mitigation.
    Service response: With the exception of management at the State 
scale, we are proposing an approach to golden eagle management that 
addresses the issues raised by the four comments above. As explained in 
more detail earlier in this preamble, we propose to use the flyways as 
EMUs but also incorporate a local area population cumulative take 
analysis in the permit decision process. Flyways more closely 
approximate eagle movement than the current EMUs, and the adoption of 
flyways would also provide more flexibility for where to apply 
compensatory mitigation. Under the management approach being proposed, 
limits for take of golden eagles in Alaska, as in the rest of the 
Pacific Flyway and United States would remain at zero. However, because 
golden eagles from natal areas above 60 degrees N. Latitude are usually 
migratory and much annual mortality occurs on migration or on the 
wintering grounds (McIntyre et al., 2008; Status Report), these 
proposed regulations would substantially increase flexibility in where 
compensatory mitigation for take of golden eagles in Alaska can be 
applied, extending it throughout the migration and wintering range of 
Alaskan golden eagles in the interior western U.S. and northern Mexico. 
Management at three scales would be overly complex in addition to the 
fact that State boundaries have no relation to eagle movements or 
migration patterns or to populations affected by a given project. 
Accordingly, we are not proposing to manage either species of eagle at 
the State scale. However, State management plays a crucial role in the 
management and conservation of eagles, thus we will continue to 
coordinate when issuing permits and partner with States on conservation 
initiatives.
    Comment: The Service should revise its interpretation of the eagle 
preservation standard to apply to the national population of eagles and 
should, therefore, issue an eagle take permit if issuance would not 
reduce the likelihood of survival of the species of golden eagles and 
bald eagles nationally, rather than individual eagles or local or sub-
regional populations.
    Service response: Application of the preservation standard to only 
a national scale would not protect eagles throughout their ranges. For 
example, it would allow for loss of all bald or golden eagles on the 
east or west coast, or even everywhere but Alaska, which is not an 
effective or sufficiently protective management framework.
    Comment: The Service should evaluate take not just in a regional 
context, but also taking into account its impact on local and national 
populations.
    Comment: The Service should establish smaller local geographic 
units (as defined by eagle biology and movement) in order to better 
assess project-level impacts and mitigation.
    Service response: Protection of eagle populations across the 
flyways would protect eagles at the national scale. With regard to a 
more local scale, these proposed regulations add protection in two 
ways. First, we propose to modify and codify the Preservation Standard 
to include the goal of maintaining the persistence of local populations 
throughout the geographic range of both species. Second, these proposed 
regulations would incorporate the LAP cumulative effects analysis into 
the permit issuance criteria.
    Comment: The Service should use smaller local geographic management 
units within the larger regional units, which would allow the Service 
to permit take in areas where the local breeding population exceeds the 
regional averages. It would also mean that replacement mitigation would 
not need to be tied to the larger regional population, but would be 
based on the local population.
    Service response: The Service assesses local population impacts as 
part of the LAP assessment. However, at this time the fine-scale local 
population data that would be needed to assess eagle abundance at this 
scale in all seasons, and changes in that abundance between years, is 
not available. Thus the Service relies on estimates of average summer 
population density to approximate the size of local populations for 
this assessment. Moreover, effects on local populations are complicated 
by the fact that some currently unknown proportion of the fatalities 
associated with any activity almost certainly involves individuals not 
from the local breeding population (e.g., migrants). This assumption 
further complicates tying take rates to local eagle abundance and is 
the reason the Service allows offsetting mitigation at the larger scale 
of the EMU.
    Comment: The Service should allow for take thresholds to be 
flexible in some cases to account for migrating, wintering, etc., 
eagles that come from other regions.
    Service response: We do not have enough data in most cases to know 
whether the take from a particular permitted activity comprises more or 
less of the local breeding eagles than the average. As explained in our 
response to the question above, the Service allows offsetting 
mitigation at the EMU scale.
    Comment: The Service should use the most current research and 
scientific information (for example, telemetry data) to redraw and 
update the EMU boundaries to more accurately reflect

[[Page 27947]]

breeding territories, wintering ranges, and migration corridors for 
bald and golden eagles.
    Service response: The Service considered and will continue to 
evaluate banding and satellite-tagged data on eagle movements as part 
of a reassessment of EMUs for this DPEIS. The Service's current 
proposal to use flyways to delineate EMUs is based on current data, 
including telemetry data.
    Comment: The language in the Eagle Act that the Service refers to 
as the ``Preservation Standard'' does not apply to nonpurposeful take 
permits. Nonpurposeful take permits are not required to be compatible 
with eagle preservation. The phrase ``compatible with the preservation 
of the bald eagle or the golden eagle'' occurs within the first clause 
within section 668a of the Act, which applies to take from certain 
specified, narrow activities, including those for ``scientific or 
exhibition purposes'' and ``for the religious purposes of Indian 
tribes.'' The preamble to the Eagle Permit Rule makes it clear that the 
authority for eagle take permits arises from the last half of the 
second clause of section 668a: ``protection of . . . agricultural or 
other purposes.'' Since Sec.  22.26 of the Eagle Permit Rule implements 
the second clause of section 668a of the Eagle Act with respect to the 
authorization of eagle take permits, it concerns a separate class of 
activities than those enumerated in the first clause of section 668a. 
Therefore, nonpurposeful take permits should not be limited to 
situations compatible with the preservation of the golden eagle or bald 
eagle (the standard from the first clause).
    Service response: While we understand the argument being made by 
this commenter, we believe it is more reasonable to conclude that 
Congress did not intend to allow the Secretary to issue permits that 
are incompatible with the preservation of eagles to protect any 
conceivable interest. In our view, as the agency responsible for 
interpreting and implementing the statute, it would be unreasonable to 
conclude that Congress limited take of eagles for particularly 
defensible interests, including research and Native American religious 
use, to sustainable levels while allowing unfettered take, regardless 
of the consequences, for other purposes. Therefore, we will not alter 
our interpretation of the statute, which takes into account the plain 
meaning of the Eagle Act's specific language, its purposes, its 
legislative history, and our consistent past agency practice.
    Comment: The preservation standard should be based on increasing 
breeding populations, not just keeping them stable, and should apply to 
all populations in all areas where eagles have traditionally been 
found.
    Service response: Under the current preservation standard, bald 
eagle populations have continued to grow, and our data and modeling, 
using conservative assumptions (see Appendix E of the DPEIS), estimate 
they will stabilize at approximately 260,000 individuals nationwide, up 
from approximately 174,000 in 2009. Ideally, golden eagle populations 
would also grow, but our data show populations have been mostly stable 
over the past 40 years, so an objective that called for increasing 
golden eagle populations would require addressing limiting factors that 
have been in place for at least 40 years. Our data show that the most 
significant limiting factor for golden eagles is mortality, especially 
of adult eagles, caused by unpermitted anthropogenic sources. Our hope 
is that by converting currently unauthorized take to take authorized 
under permits requiring implementation of conservation measures to 
avoid and minimize take and offsetting compensatory mitigation for 
remaining take at a greater than one-to-one ratio, golden eagle 
populations can stabilize or modestly increase. As a final point of 
clarification, our management objective is not just to maintain stable 
populations, but rather to allow for stable or increasing populations.
    Comment: The Service should remove the reference to ``breeding'' 
populations in the preservation standard and replace it with 
``consistent with the goal of stable or increasing populations.'' This 
change will better recognize recent findings clarifying the importance 
of subadults and floaters to eagle populations.
    Service response: The Service does recognize the demographic 
importance of all age-classes of eagles, and believes a population 
objective that maintains the potential for stable numbers of breeders 
is protective of all ages. Recruits are available to replace breeders 
that die only if subadult and floating adult populations are healthy, 
and the Service's demographic models take this into account in our 
estimates of sustainable take rates, so we are proposing to retain the 
word ``breeding'' in the definition.
    Comment: The Preservation Standard should incorporate the concept 
of resilience, requiring maintenance of ``resilient and stable or 
increasing'' breeding populations. For eagle populations to be 
resilient to change, multiple factors (size, genetic diversity, 
demographics) must be of sufficient quality to provide for long-term 
persistence.
    Service response: The concept of resilience is already inherent in 
the preservation standard. Keeping ``breeding'' in the standard 
provides for resiliency: In order for breeding populations to remain 
stable or increase over time, their size, genetic diversity, and other 
demographic factors must be sufficient to allow for the populations' 
continued resilience. Our proposal to add ``persistence of local 
populations throughout the geographic range'' to the preservation 
standard also helps ensure resiliency.
    Comment: In order to effectively balance the population with 
development pressure, habitat loss, and other unanticipated impacts to 
the eagle population, a management goal of increasing the population 
would be a more conservative approach to protecting the eagle 
population.
    Service response: A management goal of increasing populations would 
be more conservative in terms of authorizing take than the Service's 
current and proposed goal: Maintaining stable or increasing breeding 
populations. We believe the latter is sufficiently protective and 
consistent with the plain language of the statute. It allows for 
increasing populations, as evidenced by the fact that bald eagle 
populations in the coterminous United States have continued to increase 
since the Service adopted the standard. At some point, bald eagle 
numbers will stabilize, however. We estimate that stabilization will 
occur in roughly 25-30 years with a population of about 230,000 
nationwide, including Alaska. For golden eagles, populations are at 
about 40,000 individuals, but would, without unauthorized sources of 
anthropocentric mortality (shooting, collisions, etc.), be stabilized 
at approximately 70,000 individuals. Conversion of some of that 
unauthorized take into authorized take through permitting secures 
offsetting mitigation and other conservation measures and has the 
potential to increase golden eagle populations from their current 
equilibrium number.
    Comment: The Service should replace the current ``preservation'' 
standard with ``to not meaningfully impair the Bald/Golden Eagle's 
continued existence.''
    Comment: The alternative qualitative approach described in the 
scoping materials ``to not meaningfully impair the bald or golden 
eagles' continued existence'' is vague, ambiguous, and subject to 
interpretation. The suggestion that extinction is a threshold is 
alarming and contradicts the regulatory standard

[[Page 27948]]

of the Eagle Act. While qualitative objectives may provide a larger 
degree of flexibility, they often rely far too heavily on the judgment 
of individuals, often working in isolation and overwhelmed with permit 
reviews.
    Service response: We are proposing to maintain a quantitative 
approach to managing eagle populations for reasons discussed earlier in 
this preamble.
    Comment: The Service should adopt a Qualitative Prevention approach 
rather than a Quantitative Allowance approach to allow for more 
flexibility to issue permits even if mitigation options are not 
available to fully compensate for impacts, thus increasing data 
collection as the result of monitoring required by the permit.
    Service response: We have enough data to understand that additional 
take of golden eagles is not compatible with maintaining the current 
population unless the take is offset. Not using the data we have for 
the purported reason of obtaining more data would not be scientifically 
defensible.
    Comment: We believe the quantifiable approach is far too cumbersome 
and makes for an overly complex management/permitting approach. Aside 
from reducing the complexity of analysis for and issuing permits, 
proceeding with a qualitative assessment approach would allow for 
greater flexibility in compensatory mitigation options than the 
quantitative approach--focusing more on ``growing'' eagles than saving 
them from other anthropogenic sources of mortality.
    Service response: The quantitative approach reduces complexity at 
the permit issuance level because the allowable take limits are already 
established. A qualitative standard would require complete, independent 
population assessments for each permit, and would also make it 
challenging to assess cumulative impacts. Greater flexibility in where 
compensatory mitigation can be applied would be achieved under the 
proposed flyway EMU approach. The Service is also expanding mitigation 
options by establishing and encouraging the use of conservation banks 
and in-lieu fee programs, which, when available, will simplify 
mitigation requirements at the individual permit level. We agree that 
data collection from monitoring permitted activities is of high value. 
We do not agree that focus should be shifted from addressing 
anthropogenic sources of mortality. Not only are anthropogenic sources 
the ones most readily controlled, our data reflects that they are 
responsible for almost 60% of golden eagle mortalities.
    Comment: The preservation standard currently implemented requires 
surveys and monitoring with the likely consequence that funds will be 
redirected from more important resource needs.
    Service response: The Service has the responsibility to ensure that 
any take that we authorize is compatible with eagle preservation. 
Surveys and monitoring are a critical part of any responsible wildlife 
management framework that includes permitting take in populations that 
are already significantly affected by anthropogenic sources of 
mortality.
    Comment: The Service should use both a quantitative and qualitative 
approach. The qualitative criteria could be used when there is not 
enough data in an area to set population objectives and take 
thresholds.
    Service response: We disagree that a qualitative approach is 
warranted for setting regional population take limits in areas where we 
have insufficient data to say whether permitting take will result in 
population declines. The Service has the statutorily mandated 
responsibility to make a positive determination that the take will be 
compatible with eagle preservation when issuing eagle take permits.
    Comment: The Service should exercise caution when permitting lethal 
take of eagles where best science shows populations are compromised, or 
especially where populations are proven to be `sink' populations.
    Service response: We are proposing incorporation of the LAP 
cumulative effects analysis into the permit evaluation criteria for 
eagle incidental take regulations to better protect eagles at the local 
scale.
    Comment: For golden eagle management units with adequate population 
data and robust populations, the Service should relax the ``no net 
loss'' standard and implement the permitting process at levels 
compatible with maintaining stable or increasing populations.
    Service response: We would not require compensatory mitigation for 
take in populations that could withstand additional take without 
declines to levels below our population objective. Our data indicate 
golden eagles may already be experiencing higher take rates from 
unauthorized take than can be sustained. Accordingly, all take we 
authorize above EMU take limits must be offset.
    Comment: The Service should adopt a low-risk tolerance (cautious 
approach) to management of golden eagles in the Southwest (Bird 
Conservation Region 16) because of changes in climate, land management 
and resource development, and continued human population growth.
    Service response: We are proposing to adopt a risk-averse stance 
that minimizes the chances that our permit program will negatively 
affect the population trajectory of both species. The take limits we 
are proposing are derived by using conservative estimates of population 
size and then using a conservative approach to determine how much take 
those (potentially underestimated) populations can absorb without 
experiencing declines. We also use compensatory mitigation to offset 
all take permitted that might exceed what is sustainable, and for 
golden eagles, are proposing to compensate for take at a greater than 
one-to-one ratio.
    Comment: The Service should set population goals. Quantitative 
objectives allow States to measure progress towards goals, are an 
essential feature of adaptive management strategies, and are the best 
way to ensure that eagle populations remain secure.
    Comment: Numerical population objectives alone are not sufficient 
to guide permitting decisions without appropriate take thresholds and/
or caps for regional and local populations.
    Service response: We agree that an ideal approach would include 
take limits and numerical population objectives based on conservation 
plans. We would like to develop specific eagle population objectives 
for each EMU and then use these objectives to inform permit decisions 
within the EMUs. However, this goal is not feasible at this time given 
the lack of fine-scale information on eagle populations that would be 
necessary. The technical and logistical complexities of working with 
State agencies and tribes to set population objectives within the 
timeframe of this action are impractical.
    Comment: The ECPG and the 2009 permit regulations are inconsistent 
as to whether the maximum take thresholds are set at ``1% of annual 
productivity'' or ``1% of population.''
    Service response: The ECPG and 2009 regulations differ purposefully 
with respect to the population component against which the take limit 
is applied. The reason for this difference is described in detail on 
page 80 of the ECPG. However, we are proposing to revise the current 
approach and base take limits on a percentage of the EMU population 
instead of estimated annual productivity, making the regulations, in 
this respect, similar to the ECPG. We now believe it is more 
appropriate to track and manage take limits when they are based on 
applying a harvest rate to

[[Page 27949]]

total population size, since take is occurring in all age classes, and 
we have conducted analyses to determine what take rates, when applied 
in this way, are compatible with our management objectives.
    Comment: The Service should develop a new Maximum Sustained Yield 
take threshold model based on the take of adult individuals from the 
population, rather than the removal of juveniles (as was the basis for 
the 2009 FEA) because the removal of juveniles has less of an impact 
than removal of mature individuals.
    Service response: The 2009 FEA used a harvest model that imposed 
take in proportion to abundance across all age classes. Take was not 
assumed to be restricted to juveniles. In the draft DPEIS for this 
action, the Service has updated and revised its modeling of the effects 
of take on eagle populations, and we continue to assume incidental take 
affects all age classes in proportion to abundance.
    Comment: Eagle population status should be assessed every 5 years 
using the best scientific methodologies available.
    Comment: The Service should reevaluate new information (data) that 
may affect management decisions or take permits on an annual basis. 
Incorporation of new, peer-reviewed research needs to occur quickly 
because predator populations can experience sudden, drastic changes.
    Service response: Our intention is to assess population status 
every 6 years, but management decisions and issuance of take permits 
will incorporate the best available scientific information on an 
ongoing basis.
    Comment: The current rulemaking should take this opportunity to 
address the differences between bald eagles and golden eagles in terms 
of their natural history, habitat requirements, and behavior and 
address how the management units, risk models, and mitigation measures 
planned for each reflect the conservation requirements of that species.
    Service response: In general, regulations should include provisions 
that will apply based on the status, trends, and threats, as well as 
the natural history and behaviors, of the species they protect, no 
matter which species it is. For example, the ESA does not contain 
species-specific criteria, but its provisions adaptively apply to any 
species listed as threatened or endangered. The status of species tends 
to change over time. For example, 30 years ago, more restrictive 
provisions would have been appropriate for bald eagles than for golden 
eagles. To adequately encompass changes in population size and trend, 
the regulations should be designed to provide the appropriate level of 
protection for either and both species. These regulations propose to do 
that by incorporating take limits at the EMU level established in the 
DPEIS and adjusted in the future, through subsequent surveys and 
analysis. We also propose to require various analyses that are informed 
by differences between the two species based on their conservation 
status, as well as their natural history, habitat and prey 
requirements, and behaviors. Those differences underpin our management 
objectives and how we apply the regulations ``on the ground.'' The 
DPEIS for this action and various guidance documents also reflects 
biological and behavioral differences between the species.
    Comment: The revised management scheme needs to clarify whether 
take caps are hard or flexible. The Service has issued permits that 
exceed the 5% local area population cap but has not articulated under 
what circumstances ignoring the cap is acceptable and how it is 
consistent with the preservation standard.
    Service response: Currently, the 5% local area population ``cap'' 
is guidance, not a hard limit. Under the proposed regulations, the 
Service would not issue permits that result in cumulative take within 
the LAP exceeding 5% unless the Service conducts additional analysis 
showing that permitting take over 5% of that LAP would not have a long-
term detrimental effect to the LAP that would be incompatible with the 
preservation of eagles. Examples of situations where the Service may be 
able to sufficiently document that a permit authorizing take above 5% 
of the LAP would not be inconsistent with the preservation standard 
might include: If the project is already in operation and the permit 
conditions would result in a reduction of take; or compensatory 
mitigation will be applied within the LAP.
    Comment: The Service should reconsider the position that 
``historic'' or ``baseline'' types of take should not count against the 
take thresholds. Failure to evaluate these types of take will lead to 
an over-estimation of the Maximum Sustained Yield as described in the 
Final Environmental Assessment on the 2009 permit regulations.
    Service response: Take thresholds (or limits) are measured against 
population sizes that existed in 2009 when the two new eagle take 
permit regulations were put in place. Those populations were 
experiencing a certain amount of take at that point that we are 
considering baseline for purposes of measuring how much additional take 
the populations can sustain while maintaining stable or increasing 
breeding populations. Take that was occurring prior to 2009 was 
reflected in the population level (golden eagles) or rate of growth 
(bald eagles) that existed in 2009. Accordingly, the Service's position 
when it established the 2009 take levels is that applicants seeking the 
newly available take permits for golden eagle take that had been 
occurring prior to 2009, or bald eagle take in the EMU where take 
limits were set at zero (i.e., in the Southwest), would not need to 
provide offsetting mitigation because the take is not additive to 
already existing take levels. Those applicants would be required to 
avoid and minimize to the maximum degree practicable, with the goal of 
reducing take from their activities. Recent data indicate golden eagle 
populations would likely stabilize at a significantly higher population 
level if sources of unauthorized take are removed. Applicants for 
incidental take permits whose activities have been taking eagles prior 
to 2009 and have had more than 6 years to apply for permits may be 
required to address past take by entering a settlement agreement before 
being issued a permit for future take. Such agreements would require 
the company to undertake corrective actions and pay penalties for 
unpermitted past take, among other actions.
    Comment: The Service should conduct an analysis to assess the 
relative contribution of `historical' or `baseline' types of take to 
the overall take that might be expected.
    Service response: We are unsure if this commenter meant that we 
should analyze how much of the take we expect to permit will consist of 
take that was historical (ongoing prior to 2009), or that we should 
analyze how much take that will occur in the future, whether permitted 
or not, was historical. At any rate, we agree that a better 
understanding of how much eagle take was occurring prior to 2009 would 
be useful. There is not an abundance of data to inform us about the 
extent of different sources of take in years preceding 2009, but in 
2015, we used survival rate estimates that omitted the fraction of 
mortality caused by anthropogenic activities, under the assumption that 
this artificially high mortality was keeping golden eagle populations 
at a lower equilibrium size than would otherwise be the case. This 
analysis suggested that, in the absence of ongoing anthropogenic take, 
and assuming food did not become limiting, the western U.S. golden 
eagle population would be stabilized at about

[[Page 27950]]

70,000 individuals, or 1.75 times its current size. Virtually none of 
that ongoing anthropogenic take is authorized.
    We have attempted to research the extent of one form of historical 
take via the DPEIS on this action: Take for Native American religious 
use. More information about this type of take would allow the Service 
to better determine that the take can be considered baseline when we 
issue eagle take permits to tribes.

Permit Duration/Tenure

    Comment: The EIS should include an alternative that returns to 5 
years as the maximum permit duration and also the effects of not 
renewing a take permit after its 5-year duration.
    Service response: Three of the five DPEIS alternatives include the 
provision that 5 years is the maximum permit tenure. Analyzing the 
effects of not renewing individual take permits after 5 years would be 
speculative at this stage and would need to be considered on a case-by-
case basis.
    Comment: The recent revisions to the permit regulations that allow 
for permits to be issued for up to 30 years endanger eagles. There is 
not enough data or analysis to support permits of this duration.
    Comment: The extension of maximum permit tenure to 30 years is 
appropriate and will encourage project proponents to obtain eagle take 
permits and commit to the associated conservation measures that will 
benefit eagles.
    Comment: The programmatic take permittees should be subjected to a 
3-year renewal and review cycle. Technology in the wind industry is 
changing at a speed that long-term permit requirements would not be 
able to capture.
    Comment: The maximum programmatic permit tenure should be 15 years 
with thorough and effective review every 5 years. These reviews should 
be independent of permittee-derived monitoring results.
    Comment: The maximum permit tenure should be 20 years with the 
option for review and permit renewal for an additional 10 years. 
However, this 20-year permit must require that post-construction 
monitoring occur annually in years 1-5 and then every third year for 
the balance of the permit.
    Comment: For projects that will have a longer lifespan or a more 
lengthy Federal license or permit term, the Service should revise the 
regulations to retain the flexibility to grant programmatic take 
permits that extend beyond 30 years so that the permit term is 
coextensive with the life of the project, or at least consistent with 
the term of the Federal authorization.
    Service response: We believe the 5-year maximum permit term is 
unnecessarily burdensome for businesses engaged in long-term actions 
that have the potential to incidentally take bald or golden eagles over 
the lifetime of the activity. It has also had the unintended effect of 
discouraging proponents of long-term activities from applying for 
permits, despite the risk of violating the statute. With longer term 
permits, the Service has the ability to build adaptive management 
measures into the permit conditions. This approach provides a degree of 
certainty to project proponents because they understand what may be 
required to remain compliant with the terms and conditions of their 
permits in the future. This information allows companies to plan 
accordingly by allocating resources so that they will be available if 
needed to implement additional conservation measures if necessary to 
remain in compliance with statutory and regulatory requirements.
    The Service cannot require any entity to apply for an eagle take 
permit (except under legal settlement agreements), with the result that 
some project proponents build and operate without eagle take permits in 
areas where eagles are likely to be taken. The 5-year permit duration 
limit has exacerbated this situation for projects with lifetimes much 
longer than 5 years. When proponents choose to build projects without 
seeking permits because they perceive the application burdens are too 
great, the opportunity to achieve mitigation and conservation measures 
is lost. The Service believes that permitting long-term activities that 
are likely to incidentally take eagles, including working with project 
proponents to minimize the impacts, and securing compensatory 
mitigation, is preferable to forgoing that opportunity because 
companies perceive the permit process as being more onerous than it 
should be. Enforcement becomes the other option when entities take 
eagles without permits, and the Service is actively engaged in numerous 
investigations focused on incidental take of eagles. However, 
regulatory compliance is vastly preferred over resorting to 
enforcement.
    If the maximum permit tenure is extended to 30 years, the Service 
will evaluate each permit at no more than 5-year intervals. These 
evaluations will reassess fatality rates, effectiveness of measures to 
reduce take, the appropriate level of compensatory mitigation, and 
eagle population status. Additional commitments with regard to 
conservation measures may be required of long-term permittees at the 5-
year permit evaluations. In 2013, when the maximum term of programmatic 
permits was extended from 5 to 30 years (struck down in 2015), language 
was included in the regulations limiting additional conservation 
measures that could be required of the permittee to those contemplated 
at the time the permit was issued. However, that language was based on 
the requirement that all permittees would be required to implement 
advanced conservation practices that reduce take to the point where it 
is unavoidable. As part of the Management Common to All Action 
Alternatives, long-term permittees would be subject to the same 
criterion as holders of standard permits have been under the current 
regulations: They would be required to undertake all practicable 
measures to reduce take and would no longer be required to implement 
ACPs to reduce take to the point where any remaining take is 
unavoidable. To ensure eagles are adequately protected, based on the 
results of the 5-year evaluations, the Service may require long-term 
permittees to undertake additional conservation measures that are 
practicable and reasonably likely to reduce risk to eagles based on the 
best scientific information available.
    With regard to the suggestion that maximum permit tenure should be 
longer than 30 years, we disagree at this time because 30 years should 
cover the duration of most projects that are likely to need incidental 
take permits and is a reasonable period in which to adaptively manage 
permitted activities without requiring a new permit. Permit renewal 
will be an available option for permitted projects that operate for 
longer than 30 years.
    Comment: The regulations need to retain the provision that the 
Service may suspend or revoke permits if necessary to protect eagles.
    Service response: Revocation and suspension remain discretionary 
options under these proposed regulations.

Permit Application Process, Permitting Decision Process, and Issuance 
Criteria

    Comment: Some Service Regions have imposed a requirement that 
applicants prepare Service-approved Bird and Bat Conservation 
Strategies as part of the permit application. The regulations do not 
require this action, and evaluation of non-eagle species should not 
rise to the level of an approved plan for a Service decision in support 
of issuing an eagle take permit.

[[Page 27951]]

    Service response: By regulation (50 CFR 13.21(c)), any permit 
``automatically incorporates within its terms the conditions and 
requirements of subpart D of this part and of any part(s) or section(s) 
specifically authorizing or governing the activity for which the permit 
is issued, as well as any other conditions deemed appropriate and 
included on the face of the permit'' (emphasis added). Development and 
compliance with Bird and Bat Conservation Strategies to reduce take of 
other federally protected species is appropriate in light of the 
Service's responsibilities under Federal wildlife protection laws.
    Comment: The contents of the permit application form should be 
explicitly spelled out in the regulations. The preamble to the current 
regulations states that the application form requirements are 
purposefully absent so the Service can modify them without undergoing 
additional rulemaking. This lack of formal codification could lead to 
unintentional, predecisional actions by the Service, such as deeming 
applications incomplete.
    Service response: The Service is required to have all its permit 
application forms approved by the Office of Management and Budget every 
3 years. During that process a notice is published in the Federal 
Register allowing the public to comment on the contents of the forms. 
Incorporating the contents of the forms into each permit regulation 
would require the Service to undergo hundreds of additional rulemakings 
every 3 years, which would be redundant, costly, and impracticable.
    Comment: It would be beneficial for the public and government 
agencies to clearly understand the approximate (or maximum) length of 
time it would take the Service to complete various eagle permit 
applications since the current process appears to differ from 50 CFR 
13.11.
    Comment: The regulations should establish a standardized timeline 
for review proportional to the risk posed to eagles by any given 
project.
    Service response: We agree that implementation guidance containing 
approximate timelines for issuing eagle take permits would be 
beneficial. It is true that Sec.  13.11 implies that permit application 
processing will take no more than 60 days because Sec.  13.11(c) 
recommends applicants submit their applications at least 60 days prior 
to commencement of the activity requiring authorization. Part 13 
applies to all Service permits, most of which are much simpler to 
process than eagle take permits. At present, there is considerable 
variation in the time it takes to reach a decision on an eagle 
incidental take permit, depending on project duration, complexity, and 
other factors. Delays in processing permit applications are also 
sometimes due in part to applicants providing inaccurate or incomplete 
information in the application, including substandard data. In 
addition, since the 2009 regulations were put in place, the Service has 
been in the process of revising them. When the pace of revisions to the 
regulations slows so that we can expect a given set of rule provisions 
to be in place for the foreseeable future, and the Service is not 
continually making revisions to the regulations, we plan to develop 
implementation guidance given sufficient agency resources.
    Comment: The regulations should specifically address the 
requirements for each type of permit. For example, they should clarify 
what level of studies and which types of documents are needed, the 
level of NEPA that is appropriate, and whether an ECP is required for 
each type of permit.
    Service response: We do not agree that it is appropriate, or even 
possible, to set out in regulations stipulations as to what level of 
NEPA is required (i.e., categorical exclusion, EA, or EIS) for 
different types of permits or when an eagle conservation plan is 
required. There are too many project-specific factors to consider, 
including whether there is another Federal nexus, the level of 
controversy, the status of eagles in the area, the size and scale of 
the project, whether the issuance of a permit for the activity is 
precedent-setting, whether other trust resources will be affected, and 
more.
    Comment: All environmental reviews for take permits should be 
published for public review and comment.
    Service response: We publish a notice in the Federal Register to 
notify the public of their opportunity to review and comment on most 
environmental assessments and all environmental impact statements 
undertaken under NEPA.
    Comment: The Final EA, final rule, and guidance do not specify the 
mechanism by which the NEPA document for individual projects should be 
prepared. The regulations should continue to allow the Service to 
accept applicant-prepared EAs to expedite the permitting process.
    Comment: Independent, third parties not employed directly by the 
permittee should conduct the environmental assessment (EA). This could 
be accomplished by the permittee supplying funds for the EA managed by 
the Service.
    Service response: NEPA regulations allow applicants to prepare EAs, 
and the preparation could be done in-house or by a third-party 
contractor. No matter who prepares an EA, the Service is responsible 
for the adequacy of the analysis on the effects of the permit issuance.
    Comment: The Service should clarify that projects seeking take 
permits will be subject to NEPA analysis only in regard to the effects 
of the permit itself, and not the authorization of the project as a 
whole.
    Service response: The NEPA analysis required when the Service makes 
a permit decision is based on the direct, indirect, and cumulative 
effects of the authorization and any mitigation tied to the 
authorization.
    Comment: For the NEPA analysis on individual permits, the Service 
should use the project-specific NEPA already undertaken by other 
Federal agencies, rather than developing an additional NEPA document.
    Service response: We prefer to be a cooperating agency and use 
other Federal agencies' NEPA analyses rather than using our very 
limited staff and resources to prepare a second NEPA document. However, 
it is sometimes the case that other Federal agencies have not taken a 
hard look at effects to eagles, particularly in light of the fact that 
such effects may change after the Service works with project proponents 
to reduce take. In such cases, we have needed to prepare an additional 
NEPA analysis. Additionally, we receive many permit applications from 
non-federal applicants for projects on private land. For those 
applications, the Service has the sole responsibility for completing 
the NEPA obligations. Under this DPEIS, we are analyzing the effects to 
eagles of authorizing take up to certain levels, which will allow us--
and other agencies--to tier from the DPEIS when analyzing effects to 
eagles in most cases.
    Comment: The regulations should apply the same standard for both an 
individual and programmatic take--that a take cannot be practicably 
avoided.
    Comment: The criteria for issuing programmatic permits under the 
Eagle Act, consistent with the requirement for an Endangered Species 
Act incidental take permit, should require avoidance and minimization 
only to the maximum extent that take cannot practicably be avoided, and 
then mitigation for residual take that cannot otherwise be avoided.
    Comment: An ``unavoidable'' standard could present a high 
threshold, where reliability, proven effectiveness, and cost are not 
considered in developing and implementing

[[Page 27952]]

``advanced conservation practices.'' The cost of a conservation 
practice should have a reasonable relationship to the potential 
benefits derived from such a practice.
    Comment: The Service should also amend the definition of ACPs, to 
ensure consistency with the change to the definition of 
``practicable,'' if the latter is adopted.
    Comment: The standard for programmatic permits should not be 
reduced to what is practicable; ``practicable'' speaks to money. Birds 
should not be sacrificed so people can save money.
    Comment: The standard for permitting programmatic take should not 
be weakened. The only factor that, at least theoretically, prevents 
developers from irresponsibly siting wind facilities is that remaining 
take must be unavoidable in order to be permitted. The Service must 
implement its own regulations requiring applicants to avoid and 
minimize take to the degree that remaining take is unavoidable, and not 
permit wind facilities at sites used by eagles for breeding, wintering, 
and migration. Under the ``unavoidable'' standard, developers should be 
forced to select sites outside of eagle habitat.
    Comment: The ``unavoidable'' standard needs to be retained for 
programmatic permits because of the unique cultural stature of the bald 
eagle as our national symbol. The enacting clause of the Bald Eagle 
Protection Act of 1940 stated that the bald eagle ``is no longer a mere 
bird of biological interest but a symbol of the American ideals of 
freedom.''
    Comment: The ``unavoidability'' criterion provides the needed 
pressure for technological advancement in conservation measures because 
it calls for the implementation of technically ``achievable'' measures 
even if some of those measures are costly, are not the current industry 
standard, or must be further technically developed.
    Service response: For the reasons explained earlier in this 
preamble, the Service is proposing to eliminate the distinction between 
standard and programmatic permits and apply the practicability standard 
to all permits. In short, we believe there is no sound reason to allow 
consideration of cost, technology, and logistics for some permits and 
not for others. These proposed regulations would require potential 
permittees to implement all practicable best management practices and 
other measures and practices that are reasonably likely to reduce eagle 
take.
    Comment: To the extent that the Service amends the current issuance 
criteria for programmatic permits to align with the ``practicable 
avoidance,'' the term ``practicable'' should be redefined as ``capable 
of being done after taking into consideration, relative to the 
magnitude of the impacts to eagles: (1) The cost of the remedy for an 
actual measurable impact as compared to the overall benefit and utility 
of the project with respect to public interest; (2) existing 
technology; and (3) logistics in light of overall project purposes.''
    Service response: The problem with including consideration of the 
``overall benefit and utility of the project with respect to the public 
interest'' is that this is a subjective criterion. For example, some 
might argue that expansion of an airport serves the public interest by 
increasing safety and convenience in flight choices, while others might 
point to the increased landfill, noise, and pollution as detrimental to 
the public interest.
    Comment: Although a proponent's ability to pay can be a relevant 
factor in determining the extent of conservation measures, the 
determination should also consider the benefit to the species derived 
from the remedy. If the benefit to the species from an avoidance and 
minimization measure is low and the cost is high, the measure would not 
be considered ``practicable.''
    Service response: We are proposing to adopt the Service's 
definition of ``practicable'' in our proposed revised Mitigation Policy 
(see 81 FR 12379, March 8, 2016). That definition includes 
consideration of ``a mitigation measure's beneficial value to eagles.''
    Comment: The ``practicable'' standard should not take into account 
the project proponent's resources.
    Service response: The proposed definition of ``practicable'' 
requires consideration of the activity's ``purpose, scope, and scale'' 
rather than ``proponent resources.''
    Comment: The Service should make permitting decisions on a regional 
scale where multiple projects are proposed, rather than issuing 
mortality permits to each facility.
    Service response: The option of issuing regional permits is 
available. We have not had a proposal upon which to make such a 
permitting decision. The potential applicants would be responsible for 
taking the initiative to organize a sound regional proposal for the 
Service to evaluate. Also, if there will be prohibited impacts to ESA-
listed species as well as eagles, there is the option of developing an 
HCP and applying for an ESA incidental take permit that covers eagles 
as non-listed species.
    Comment: Recommendations from wildlife agencies should be 
incorporated into the project planning.
    Comment: State wildlife agencies should be consulted in the Federal 
eagle take permit process, including the Service internal, 5-year, non-
public ``reviews'' of programmatic permit conditions for the 30-year 
life of a permit.
    Service response: The Service involves State wildlife agencies to 
varying degrees based on the State's level of interest in the technical 
assistance phase (between initial contact by an applicant through the 
permit application process). We work with States that have an interest 
in coordinating with regard to our eagle permitting process. We would 
also work with those State agencies during the 5-year evaluations if 
long-term permits are established through this rulemaking.
    Comment: The authorized level of take for all programmatic permits 
should be at least two eagles to avoid requiring immediate reevaluation 
of a permit upon the take of one eagle.
    Service response: The Service's fatality prediction model is 
specifically designed to result in a 20% or lower chance of eagle take 
exceeding the permitted number, as long as the pre-construction 
monitoring data are representative of future eagle use in the project 
area. We believe this percentage is adequate to ensure the permitted 
number is not routinely exceeded. The point at which a formal 
reevaluation of a permit is required is set on a permit-by-permit 
basis, and not necessarily upon take of one eagle.
    Comment: The permit review process should be transparent and open 
to full public review and comment procedures.
    Service response: In our view, a public-comment period for each 
permit would not provide an additional benefit to eagles that would 
justify the regulatory burden. In general, permits for larger scale 
projects with significant impacts or that entail a high level of 
controversy will be analyzed in a NEPA document that will be released 
for public review and input. Public involvement may also be triggered 
at the permit review or renewal stage if FWS determines that 
supplemental NEPA analysis is required.
    Comment: Areas of particular importance to eagles, such as 
migratory corridors and high-density nesting areas, should not be 
allowed for wind development or should have additional scrutiny in the 
permitting process.
    Service response: In numerous Service guidance documents and in the

[[Page 27953]]

technical assistance we provide at the project planning stage, we 
recommend that developers avoid areas that are important to eagles. 
However, we do not have the authority to prohibit development in areas 
that are important to eagles. Our role is to evaluate the level of 
impacts to eagles when a project proponent approaches us to inquire 
about a permit to authorize eagle take. We do not have the authority to 
approve or veto the actual project.

Data Collection and Analysis

    Comment: Pre-construction surveys using rigorous methods 
standardized by the Service for wind energy development should be 
mandatory, not voluntary.
    Comment: Two years of independent, pre-construction monitoring of 
eagle behavior, nesting, foraging, and migration should be required.
    Comment: The Service or other third-party, professional biologists 
should conduct pre-construction surveys.
    Service response: These proposed regulations would require 
applicants for permits with durations longer than 5 years to conduct a 
minimum of 2 years of pre-application surveys. Wind-energy generation 
facility operators would be required to use the survey methods we are 
proposing to incorporate by reference from the ECPG. The regulations 
would provide for waivers if the wind-energy project applicant submits, 
or the Service already possesses, sufficient documentation 
demonstrating a low likelihood of risk to eagles due to: Physiographic 
and biological factors of the project site, or the project design 
(i.e., use of proven technology, micrositing, etc.); or that expediting 
the permit process will benefit eagles.
    The Service does not have the resources to conduct pre-construction 
surveys and must rely on permit applicants to provide these data. The 
Service does carefully review the pre-construction survey data for 
accuracy and works with applicants to resolve any discrepancies before 
accepting the data as reliable and accurate. Use of Service-approved or 
recommended protocols would facilitate our review and allow us to 
better identify data gaps and other insufficiencies.
    Comment: The ECPG recommends 20 hours per turbine per year of 
sampling effort, which is an amount far higher than suggested by 
simulations using the Bayesian fatality model. The additional surveys 
do not provide a corresponding benefit in terms of estimating risk, but 
are imposing additional costs on developers. The sampling guidance 
should be revised to avoid over-sampling. Also, permittees discovered 
to have provided false information on their permit applications may be 
subject to criminal penalties under 18 U.S.C. 1001.
    Service response: Appendix C of the Eagle Conservation Plan 
Guidance (Module 1, v2; hereafter, ECPG) discusses sampling effort in 
multiple contexts: (1) In terms of the effort that may be required to 
validate whether a project meets Category 3 criteria (e.g., no eagle 
fatalities will occur over a 30-year time span), and (2) in terms of 
the effort that the Service recommends when Stage 1 evidence supports 
possible project classification of Category 2 (e.g., an eagle take 
permit is recommended) and the main objective of the surveys is 
estimating risk in terms of predicted fatalities. Given the variability 
of natural systems, the current uncertainty in the site-specific 
factors that can increase the risk of eagle fatalities, and the 
sometimes inadequate information gathered during early site evaluation, 
intensive sampling is required to be reasonably certain that eagle take 
is not expected to occur and that the project would not require an 
eagle take permit.
    The example in the ECPG that calculates 20 hours of sampling 
required per turbine is specific to a project with 40 2.5-MW turbines 
with a 100-m rotor diameter where the objective is to validate a 
Category 3 classification. For assessing risk of a potential Category 2 
project, the ECPG recommends a minimum of 1 hour of observation per 
800-meter survey plot per month, but at least 2 hours of observation 
per survey plot is warranted for a season for which Stage 1 evidence is 
ambiguous or suggests high use. The ECPG also recommends sampling at 
least 30% of the total footprint of the project hazardous area and that 
surveys should be conducted for at least 2 years prior to project 
construction.
    The per-turbine effort for this minimum level of sampling will 
depend on turbine configuration and spacing. To accurately predict risk 
to eagles, sampling must provide data that are representative of eagle 
use at the site during all times of day across seasons and years. The 
benefit of additional data in terms of predicting risk will depend in 
part on the variability of eagle use at the site. The Service advises 
potential permit applicants to coordinate closely with the Service 
regarding the appropriate sampling effort, as sampling considerations 
are complex and depend in part on case[hyphen]specific objectives.
    Comment: The ECPG is intended to guide project proponents and 
Service personnel in evaluating risk to eagles and developing eagle 
conservation plans (ECPs) and permit applications. However, different 
Service Regions have developed modified guidance. The Service should 
ensure standardization of the guidance nationally.
    Service response: Differences in regional recommendations for 
applying the ECPG are expected, and not inconsistent with the ECPG, 
which was designed to be an adaptable framework that provides for 
flexibility in application based on geographic and project-specific 
variability. However, the Service strives to be as consistent as 
possible, and regularly coordinates between Regions to foster 
consistent applications of our laws, regulations, policies, and 
guidance governing eagles.
    Comment: As it is critical for assessing risk, the Service should 
require radar data at different times of the year and weather 
conditions to monitor activity and height of migratory birds flying 
through the area.
    Service response: Our guidance does not exclude the use of radar. 
It allows the most appropriate field method to be selected based on 
site-specific factors. However, radar has so far not proven very useful 
or effective, either for monitoring or for curtailment. None of the 
current radar systems are capable of providing reliable data on eagles 
(or raptors) at the necessary scales. That said, we are supporting 
testing, and if practicable technology is developed that provides 
useful and reliable data, we would likely require its use.
    Comment: Fatality prediction models should be different for the two 
species based on the apparently different behavior and risk profiles of 
each species. The prior probabilities for exposure and collision of 
golden eagles are based on data at old wind facilities in the western 
United States and are unlikely to be representative of bald eagles and 
will overestimate project risk. The Service should replace these priors 
with empirical data on bald eagles at modern wind energy facilities.
    Service response: We are aware of arguments that the Service wind 
collision probability model predicts high rates of bald eagle 
fatalities at wind facilities given the low number that have actually 
been reported. We do not disagree that bald eagles may prove to be less 
at risk from blade-strike mortality than golden eagles, but the data 
available to us are not sufficient to make that conclusion at this 
time. Reasons are: (1) The Service has yet to be provided with strong 
pre- and post-construction bald eagle use and fatality data from any 
wind project where there is high bald eagle use; (2) bald eagles 
congregate in larger numbers than golden eagles, and, while in those

[[Page 27954]]

concentrations, they engage in social behaviors that may increase their 
risk to blade strikes at a project sited in such an area; (3) in some 
of the areas where bald eagles congregate, there are multiple 
fatalities each year of bald eagles that fly into static power 
distribution lines and vehicles, suggesting that as a species they do 
not possess a superior ability to avoid collisions; and (4) there is a 
thorough study in Norway that documents a substantial population-level 
negative effect of a wind facility there on a population of the closely 
related white-tailed eagle (Haliaeetus albicilla) as a result of blade-
strike mortality. For all these reasons, the Service currently 
determines that it is reasonable and prudent to consider bald eagles to 
be equally vulnerable to blade-strike mortality as golden eagles until 
verifiable data become available to estimate a specific collision 
probability for bald eagles. If data become available in the future 
demonstrating that bald eagles are less (or more) vulnerable to blade-
strike mortality, we will revisit whether to draft a separate collision 
probability model for bald eagles.
    Comment: Exposure-based models used to predict mortality during 
pre-construction risk assessments should be tested for accuracy, and 
new models should be developed that take cumulative impacts of all 
sources of mortality into account.
    Service response: We agree, and the model framework the Service is 
using is specifically designed to easily incorporate new information 
gained through use and testing. We will periodically refine the model 
as new data are obtained.
    Comment: The Eagle Conservation Plan Guidelines (ECPG) indicate 
that eagle nest surveys should be conducted in the project area, which 
it defines as the area within the project boundary plus a 10-mile 
radius surrounding the project. However, the 10-mile radius 
recommendation was based on golden eagles in the desert southwest and 
is of questionable value in other areas and unnecessary for bald 
eagles. The Service should develop appropriate national standardized 
criteria that are species-specific and based upon region-specific 
information.
    Service response: This comment is not accurate. Appendix C of the 
ECPG, where the Stage 2 surveys are described, says, ``If recent (i.e., 
within the past 5 years) data are available on spacing of occupied 
eagle nests for the project area nesting population, the data can be 
used to delineate an appropriate boundary for the project area as 
described in Appendix H. Otherwise, we suggest that project area be 
defined as the project footprint and all area within 10 miles.'' In 
Appendix H, the ECPG states, ``Eagle nesting territories most likely to 
be affected by disturbance from a wind project are those that have use 
areas within or adjacent to the project footprint. The Service will 
accept an assumption that all eagle pairs at or within the mean 
project[hyphen]area inter[hyphen]nest distance (as determined from the 
Stage 2 assessment) of the project boundary are territories that may be 
at risk of disturbance (e.g., if the mean nearest[hyphen]neighbor 
distance between simultaneously occupied eagle territories in the Stage 
2 assessment is 2 miles, we would expect disturbance to most likely 
affect eagles within 2 miles of the project boundary; Figures H-1 
though H-4). Eagle pairs nesting within \1/2\ the project-area mean 
inter[hyphen]nest distance are the highest candidates for disturbance 
effects, and should receive special attention and consideration.'' 
Thus, the ECPG advocates surveying for eagle nests within the mean 
inter-nest distance of the project boundary, and only extending this 
distance out to 10 miles if recent data on nest spacing is not 
available.
    Comment: There is a need for greater clarification on risk 
assessment and monitoring specifications/requirements for electric 
utilities and other industries, such as mining. The Service should 
develop eagle conservation plan guidance for these other industries.
    Service response: We intend to develop guidance for other 
industries in the future, as resources allow.
    Comment: All information generated for a proposed or operational 
wind energy project should be downloaded to a free, user-friendly 
Service docket to bring much needed transparency to the process.
    Service response: We will consider developing a process that 
requires more transparency for projects going through the permit 
application process, although we note that such a process would not 
allow public access to any confidential business information or other 
trade secrets submitted to the Service by a project proponent.

Permit Conditions, Adaptive Management, Project Monitoring, and 5-Year 
Reviews

    Comment: An independent third party entity and not the permittee 
should conduct monitoring, with oversight by the Service. The party 
could be paid through a trustee by companies.
    Service response: The Service is investigating the use of third 
party environmental compliance monitors. There are benefits to using 
third party monitors, particularly the more objective observation and 
reporting of wildlife injuries and mortalities. However, there can be 
considerable costs to using third party monitors, and so it may be 
considered unreasonably burdensome for some smaller operations. It may 
be a viable option for permits for large, utility-scale projects.
    Comment: With regard to monitoring at wind power facilities, there 
is a need for peer-reviewed research-based risk models and standardized 
monitoring criteria.
    Service response: These proposed regulations would require wind 
energy project permittees to use the monitoring protocols in the ECPG. 
We, along with USGS partners, have also published three scientific 
papers on methods and approaches that we recommend for estimating risk 
and fatality rates at wind projects, and we continue to work to improve 
these assessment tools. As it becomes clear which approaches are best, 
we intend to standardize monitoring protocols under permits to the 
maximum extent practicable. However, the best monitoring approach may 
differ under different site-specific conditions (e.g., the best 
monitoring approach at a low-risk site is likely to be different than 
the best approach at a high-risk site).
    Comment: The regulations should provide that all data on bird 
mortality at specific wind energy sites be made available for 
meaningful stakeholder (public) review and analysis, including analyses 
of the effectiveness of post-construction mitigation, and the status of 
experimental measures and adaptive management prescriptions.
    Service response: The current regulations provide that eagle 
mortality reports from permitted facilities will be available to the 
public. We will also release mortality data on other migratory birds if 
we receive that data as a condition of the permit, provided no 
exemptions of the Freedom of Information Act (FOIA) (5 U.S.C. 552) 
apply to such a release. If we receive mortality data on a voluntary 
basis and we conclude it is commercial information, it may be subject 
to Exemption 4 of the FOIA, which prevents disclosure of voluntarily 
submitted commercial information when that information is privileged or 
confidential.
    Comment: The revised rule should clarify what is required and what 
analysis is performed at 5-year reviews.
    Comment: The 5-year reviews should account for eagles that abandon 
nests, eagles that continue to breed, any nest

[[Page 27955]]

that is removed, and all eagle mortalities associated with the project.
    Comment: Five-year permit reviews should be informal discussions 
bound by mitigation options and costs defined by the permit.
    Service response: Under these proposed regulations, the 5-year 
evaluations would be more than informal discussions with permittees. 
During each 5-year review, we would reassess post-construction 
monitoring, take rates, including disturbance, fatalities; 
effectiveness of measures to reduce take; the appropriate amount and 
effectiveness of compensatory mitigation; and the status of the eagle 
population. Depending on the findings of the review, we may make 
changes to a permit as necessary, including updating fatality 
predictions for the facility; requiring implementation of additional 
conservation measures that are practicable for the permittee to 
implement; updating monitoring requirements; or adjusting compensatory 
mitigation requirements. Additional post-implementation monitoring may 
be required to determine the effectiveness of additional conservation 
measures.
    Comment: Five-year reviews create uncertainty for permittees. The 
Service should incorporate provisions similar to the Habitat 
Conservation Plan Assurance Rule for incidental take permits issued 
under the Endangered Species Act. This approach would provide 
regulatory assurances to permit holders and incorporate a greater 
degree of certainty in the 30-year programmatic permit process.
    Service response: There is sufficient management uncertainty 
regarding this relatively new permit program to warrant the proposed 5-
year reviews, including the need for data to refine population models, 
survey protocols and avoidance and minimization measures. We note that 
many ESA incidental take permits contain adaptive management provisions 
that may change management prescriptions or mitigation measures based 
on new information that are similar in purpose as the proposed 5-year 
reviews. Additionally, without such reviews, there would be detrimental 
effects to permittees if long-term permit conditions prove to be 
unnecessarily precautionary.
    Comment: If the required post-construction monitoring determines 
take will exceed the pre-construction estimates, the project should be 
placed on a shorter reevaluation cycle.
    Service response: Depending on the degree of discrepancy between 
predicted and actual take, the Service may need to take timely action 
to evaluate the permitted activity to determine whether the permittee 
must implement additional measures and/or contribute additional 
mitigation. However, one effect of adopting a conservative take 
projection model is that only 20% of projects are likely to exceed 
take. For 80% of the permits issued, take is expected to be 
overestimated. This situation helps to provide the permittee more 
certainty that the authorized take level will not be exceeded in the 
majority of cases. While we have adopted such a model only for wind 
energy projects at this point, we hope to develop similar predictive 
models for other activities using information we gather under permits.
    Comment: Trigger mechanisms that will require additional measures 
by the permittee must be clearly identified prior to permit issuance 
and spelled out in the permit.
    Service response: We agree that reasonably foreseeable 
circumstances that may require additional mitigation should be 
identified and included in the permit conditions. Such circumstances 
include but are not limited to: a higher-than-anticipated take rate, 
take resulting from an unexpected source within the permittee's 
purview, or an unanticipated significant detrimental change in the 
status of the local area or regional eagle population. For long-term 
take permits, during the 5-year review periods the Service may require 
additional avoidance and minimization measures if such measures are 
likely to reduce take and are practicable for the permittee to 
implement. For example, if newer technology is shown to decrease eagle 
mortality or increase carcass detection, and could be implemented 
without unreasonable cost, employment of that technological advancement 
may be required.
    Comment: The Service must retain the option not to renew a take 
permit at the 5-year review if the level of eagle kills exceeds the 
permitted threshold and may impact populations.
    Service response: With regard to long-term permits, if these 
regulations result in the Service being able to issue permits with 
terms longer than 5 years, the Service will make any necessary 
amendments to the permit at each 5-year review, but will always retain 
the ability to suspend and/or revoke the permit in accordance with 50 
CFR 13.27 and 13.28. For expiring permits, we intend to retain the 
ability to deny renewal of the permit in accordance with 50 CFR 13.22, 
and if renewal is not consistent with the permit issuance criteria of 
the regulation. Renewal of a permit constitutes issuance of a new 
permit (see 50 CFR 13.11(d)(6)).
    Comment: When changes to the permit terms and conditions are 
expected by the Service during the term of the permit, the permittee 
should be provided as much advance notice as possible to plan and 
budget for potential changes in mitigation requirements. Periodic 
meetings (e.g., annually) between the permittee and the Service would 
be appropriate to ensure that both parties are informed on any 
potential issues or concerns.
    Service response: We agree that a permittee should be provided as 
much advance notice as possible about potential changes in mitigation 
requirements.
    Comment: The 2013 revised regulations do not define what advanced 
conservation practices will consist of for long-term permits. Standards 
are needed for these advanced practices that evolve with changing 
science.
    Service response: We are proposing to eliminate the requirement for 
ACPs. Permittees would still be required to implement all practicable 
measures to avoid and minimize take. As the commenter notes, practices 
and measures to reduce take evolve over time, even within a single 
industry. For that reason, and because the regulations are not specific 
to one industry, incorporation into the regulations of particular 
practices for all activities that may take eagles would not be 
feasible, nor would it be advisable, since doing so would mean the 
regulations would constantly need updating.
    Comment: The Service should redefine ACPs as ``scientifically 
supportable measures or testing of experimental measures that are 
approved by the Service to reduce eagle disturbance and ongoing 
mortalities to a level where remaining take cannot practicably be 
avoided.''
    Service response: We are proposing to remove the requirement to 
implement ACPs from the regulations. As part of requiring avoidance and 
minimization to the maximum extent practicable, some permits require 
implementation of experimental measures that show promise for reducing 
take. Not only are such measures likely to reduce take at many 
projects, their inclusion as conditions of permits provides the 
opportunity to test their efficacy for wider use.
    Comment: The Service should require the following measures at wind-
energy projects: Increase frequency of turbine site inspection to 
search for physical evidence of mortality/injury event; develop and 
employ video surveillance

[[Page 27956]]

and other technologies (impact alarms); and/or provide onsite personnel 
quarters to facilitate monitoring of larger wind farms.
    Service response: The practices listed by this commenter are not 
demonstrated, effective best management practices at this time. 
However, the Service could require a permittee to conduct any of these 
activities as permit conditions if we determine such measures are 
effective, practicable, and necessary.
    Comment: Minimization strategies should include seasonal 
curtailment during known periods of high avian use, as well as 
observation-based shutdown of turbines when eagles are within a 
specified distance of wind turbines. The cost of detection devices and 
methods to discourage eagles from using a site should be built into the 
project budget, as should the cost of temporary shutdown of the 
project, if necessary, during migrations.
    Service response: These are all minimization strategies that are 
being evaluated. However, data collected so far are equivocal with 
respect to their effectiveness, at least in some situations, so as a 
result the Service is not currently proposing to require them 
universally at all projects. The Service does consider appropriate 
minimization strategies on a project-by-project basis, and we intend to 
require permittees to continue to test their effectiveness as part of 
the adaptive management process under permits and apply the strategies 
that turn out to be effective.
    Comment: In a migration pathway, the use of radar to detect 
migrating raptors and on-the-ground observers should be considered 
during migration periods.
    Service response: As we explained in an earlier response to a 
comment on our collision risk model for wind power, radar has not 
proven effective, at this point, for either monitoring or curtailment. 
If advances in technology result in radar systems that provide reliable 
data on eagles (or raptors), we would likely encourage their use.

Compensatory Mitigation

    Comment: The regulations should require compensatory mitigation for 
all permits associated with (1) anticipated or known fatalities; (2) 
anticipated or known loss of productivity; and anticipated or permanent 
loss of an important use area, including breeding areas, nest sites, 
foraging areas, and migration corridors.
    Comment: The regulations should make compensatory mitigation 
mandatory for all wind energy facilities and associated transmission 
towers and lines at which federally protected birds are being taken.
    Comment: All industrial permittees should be required to provide 
compensatory mitigation in order to make preservation of eagles a 
priority for those companies.
    Comment: Compensatory mitigation requirements should be required as 
replacement mitigation only for take that exceeds established take 
thresholds and for populations that are not healthy enough to sustain 
additional mortality.
    Comment: There should be higher standards of avoidance and 
mandatory mitigation for: populations not able to sustain take, 
important eagle use areas, Important Bird Areas (IBAs) and other 
special protection areas, eagle migration corridors, and areas of high-
value habitat--particularly areas known for eagle use for foraging, 
nesting, or concentrated migration activity.
    Comment: Compensatory mitigation should not be required for all 
programmatic permits. The regulations should be amended to provide that 
compensatory mitigation will be considered on a case-by-case basis.
    Comment: All lethal take of eagles should require compensatory 
mitigation.
    Service response: One of the primary goals of these rule revisions 
is to increase consistency with regard to compensatory mitigation 
requirements. The approach we are proposing is to require compensatory 
mitigation only where the permitted take would otherwise be 
inconsistent with management goals (i.e., when it would be incompatible 
with the preservation of eagles). The requirement would apply to any 
take that would exceed EMU take thresholds. Compensatory mitigation may 
also be required in some cases when take would exceed LAP cumulative 
take limits, or if otherwise necessary to maintain the persistence of 
local eagle populations throughout their geographic range. Accordingly, 
these proposed regulations would not require compensatory mitigation 
only for lethal take or for all lethal take.
    We also do not agree that compensatory mitigation should be 
required only for certain types of industries, or only for take that 
results from a commercial or industrial activity. Whether an entity is 
commercial does not, by itself, affect the degree of impacts to eagles. 
To the degree that industrial permits entail greater detrimental 
effects to eagles than a typical homeowner permit, those permittees 
will be required to contribute additional compensatory mitigation.
    Comment: The regulations should require that conservation measures 
or monetary contributions be applied to the county where the impacts 
are generated.
    Comment: Compensatory mitigation for impacts should be implemented 
within the local, or at least regional, area population to avoid 
creating local population sinks.
    Comment: The Service should allow mitigation to occur outside the 
eagle management unit where the take occurred, based on whether the 
eagle(s) taken was migratory or resident, as long as those mitigation 
efforts help eagle populations in that EMU.
    Service response: The approach we are proposing would require 
compensatory mitigation to be applied within the EMU where the take 
occurs, with the exception that effective mitigation for take of 
Alaskan golden eagles could occur in the Central Flyway as opposed to 
the Pacific Flyway because a substantial proportion of the mortality of 
golden eagles originating in Alaska occurs on migration or during 
winter in the interior western coterminous United States and north-
central Mexico (McIntyre 2012). If we had the ability to know what 
percentage of eagles taken are from the breeding population of the EMU 
versus eagles that are wintering there or migrating through, we could 
allocate some compensatory mitigation for take of the non-breeding 
population, but we do not at present have the means to precisely 
calculate those numbers for most areas of the United States. A 
requirement to apply compensatory mitigation at a finer scale than 
within the EMU, whether at the county or local area population level, 
is not feasible to administer, and also would not account for migrating 
or wintering eagles. Allowing mitigation within the whole EMU better 
addresses take of eagles from outside the local-area breeding 
population. In most cases, allowing mitigation outside of the EMU may 
not sufficiently mitigate for project impacts, which we generally 
expect to affect eagles primarily within the EMU where the project is 
located.
    Comment: The Service should develop metrics to address compensatory 
mitigation for impacts to eagles outside the breeding population (i.e., 
on wintering grounds and during migration).
    Service response: We recognize that eagles taken under a permit do 
not all originate from the local breeding population around that 
project. However, just as eagles killed at a project do not all derive 
locally, eagles benefitting from mitigation to reduce mortality near a 
project also do not all derive from the project area. We agree

[[Page 27957]]

that metrics are needed to better track whether wintering, migrating, 
or breeding eagles are impacted by a project, and we are working with 
academic and agency collaborators to develop a genetic/isotopic 
assignment test to allow us to better track the natal origins of eagles 
killed under each of our permits.
    Comment: It is appropriate not to require compensatory mitigation 
for historic religious take by tribes; however, the Service should 
direct other permittees' mitigation efforts into the areas where the 
religious take occurs.
    Service response: Compensatory mitigation would be carried out 
within the EMU where the take occurred, unless the Service has reliable 
data showing that the population affected by the take includes 
individuals that are reasonably likely to use another EMU during part 
of their seasonal migration. It may be appropriate in some instances to 
implement compensatory mitigation measures on tribal lands, but it 
would not be a requirement. We would encourage any interested tribe to 
work with applicants or applicable national/regional mitigation banks 
or in-lieu-fee programs to implement compensatory mitigation measures 
on its lands if the tribe wishes to do so.
    Comment: Options for mitigation should include:
     An ammunition exchange in locations where eagles are 
impacted by lead;
     Funding for identification and carcass removal programs 
that would remove carcasses from areas where eagles collide with 
vehicles or trains;
     Habitat enhancement funding or purchasing mitigation lands 
through commercial habitat banks;
     Funding for appropriate research efforts;
     Reduction of unintentional poisoning;
     Implementation of a reward system to reduce poaching;
     Reduction of mortality from vehicle collisions and road 
kill-collisions through road kill-carcass removal efforts;
     Shifting to use of nontoxic ammunition via hunter 
education and voluntary lead abatement;
     Reduction of stock tank drowning;
     Implementation of a whistleblower rewards system to reduce 
poaching;
     A reduction of the impacts of secondary trapping;
     Funding of rehabilitation centers;
     Chelation to reduce lead levels in eagles;
     Funding of livestock depredation compensation programs to 
encourage landowners to protect eagles;
     Improved management of public recreational activities that 
reduce eagle productivity;
     Prey management programs;
     Habitat preservation;
     Habitat restoration;
     Reduction of unintentional poisoning;
     Captive-breeding programs;
     Utility line marking to prevent collisions;
     Nest discourager/excluder installation;
     Contributions to eagle management programs.
    Service response: We believe some of these actions have greater 
potential than others to benefit eagles and compensate for permitted 
take. Whether compensatory mitigation is provided by the permittee or a 
third party like a conservation bank or in-lieu fee program, all 
mitigation will be held to the same high, equivalent standards. For 
mitigation actions with more uncertainty concerning their effectiveness 
in compensating for project impacts, mitigation accounting systems 
would be used to increase the amount of mitigation required.
    Comment: Retrofitting cannot be the only replacement (offsetting) 
mitigation option available. A utility should have the opportunity to 
review proposed retrofitting and/or refuse. The Service needs to have 
flexibility on type of mitigation required.
    Service response: Power line retrofitting is not the only 
compensatory mitigation approach allowed by the Service, a point that 
is repeatedly made in the ECPG. In addition, under this proposed rule, 
the Service will allow compensatory mitigation measures and programs 
that face more risk and uncertainty provided mitigation accounting 
systems factor in risk and adjust metrics, mitigation ratios, and the 
amount of required mitigation to account for uncertainty.
    Comment: Mitigation should focus upon the replacement of suitable 
eagle habitat. Conservation of nest sites and potential nest sites in 
vulnerable areas should be a high priority in light of the continued 
loss of habitat and nesting sites. Habitat-based mitigation could 
include: (1) Fire prevention measures in areas with golden eagle 
breeding territories that are at high fire risk, (2) removal and 
control of nonnative grasses, which are known to increase fire risk and 
may also decrease golden eagle prey abundance, and (3) conservation 
easements to protect known golden eagle breeding territories that are 
at risk of residential, agricultural, or energy development.
    Service response: All mitigation authorized in this proposed rule 
must meet the same high, equivalent standards. With reference to eagle 
permits, compensatory mitigation, when required, must consist of 
actions that either reduce another ongoing form of mortality to a level 
equal to or greater than the unavoidable mortality, or lead to an 
increase in carrying capacity that allows the eagle population to grow 
by an equal or greater amount. When we require compensatory mitigation, 
the mitigation must demonstrate it is effectively replacing lost 
eagles, is additional to what would have occurred without the 
mitigation, and is durable for at least the length of the impacts of 
the project.
    Comment: Compensatory mitigation should not be applied to actions 
that are not already required by law. Power companies should be 
required to retrofit their own lines.
    Comment: Compensatory mitigation should not be considered to offset 
the take if it would have been done anyway. Compensatory mitigation 
must consist of actions that are additive.
    Comment: FWS should accept within-company mitigation for companies 
that have both wind facilities and power line infrastructure. This 
practice could streamline the mitigation process, facilitate assurances 
and accountability, and reduce administrative costs.
    Service response: One of the most well-established methods for 
conserving and mitigating effects to eagles is power pole retrofits. 
This rule adopts Presidential and Department of the Interior principles 
for mitigation, including requiring that all mitigation be additional 
to what would have been reasonably expected to occur without the 
mitigation. For an entity to be able to work with a power pole owner to 
retrofit power poles that pose high risk to eagles, the power line 
owner must demonstrate they are already taking appropriate and 
practicable steps to address their impacts to eagles by applying for an 
eagle take permit. Entities engaged in other activities with impacts to 
eagles, including units or subsidiaries of a company that owns power 
poles, seeking to retrofit power poles to mitigate for their effects on 
eagles would have to propose retrofits that are additional to what the 
power pole owner (or unit within the same company) has already 
committed in an eagle take permit.
    Comment: The Service should establish minimum standards for 
utilities for which the retrofits are done to avoid creating 
disincentives for utilities to take responsibility for undertaking 
their own retrofits. The

[[Page 27958]]

utility must: Systematically identify high-risk poles; demonstrate that 
they have retrofitted, reframed, or otherwise responded appropriately 
to mortalities of eagles and other protected birds on their system; 
utilize avian-safe design standards that meet or exceed APLIC (Avian 
Power Line Interaction Committee) standards; have an implemented avian 
protection plan (APP); be able to maintain compensatory mitigation 
poles as avian-safe for the duration of the permit/agreement; and 
ensure that pole retrofitting is designed and installed correctly.
    Service response: Electrocutions are among the leading cause of 
mortalities of golden eagles. The Service recommends that utilities 
with infrastructure that poses high risk to eagles work with the 
Service to implement conservation and mitigation measures and seek an 
eagle take permit. The commenter outlines many of the general standards 
this rule requires of any applicant for an eagle take permit: That the 
avoidance, minimization, and compensatory mitigation be proven 
effective through science-based means, adopt best management practices 
where they exist, and be durable for the length of the impacts to 
eagles. Full application of APLIC standards could be incorporated into 
the terms of a permit to meet the avoidance and minimization standards 
of this proposed rule.
    Comment: Permittees should have a choice as to whether to work 
directly with an electric utility or pay into a fund administered by an 
entity such as the National Fish and Wildlife Foundation.
    Service response: Our general preference is that applicants provide 
compensatory mitigation via a mitigation in-lieu fee program or eagle 
conservation bank that we have previously approved, so Service staff 
and the permit applicant do not have invest time on each permit 
devising an appropriate mitigation approach. That said, if an applicant 
provides robust analysis to demonstrate an alternative form of 
mitigation method that will satisfy offsetting mitigation requirements, 
we may accept the alternative method. However, additional analysis 
under NEPA may be required, and the permit decision will be further 
delayed if the applicant cannot provide adequate documentation of the 
efficacy of the alternative mitigation.
    Comment: A genetically diverse captive population of golden eagles 
must be obtained and maintained as a breeding population. Falconers are 
in a unique position to participate in compensatory mitigation 
projects, including obtaining golden eagles from the wild, maintaining 
them in good condition, rehabilitation, training, conditioning for 
release, and release to the wild to become successful members of an 
adult breeding population.
    Comment: The regulations should explicitly provide that mitigation 
will be focused on conservation of wild birds rather than hacking 
captive-reared eagles as a mitigation measure.
    Service response: The Service's position is that mitigation should 
be focused on conservation of wild birds for various reasons. Although 
we are looking at various methodologies for establishing a value for 
``replacing eagles,'' including the costs of raising an eagle from an 
egg to release, we currently have numerous concerns about using a 
captive-bred population of golden eagles as an offsetting mitigation 
method. First, there is ample documentation that captive-bred birds, 
including raptors, have lower survival rates than their wild-born 
relatives (e.g., Brown et al. 2006). The lower survival rates are 
likely caused by a combination of lack of genetic diversity and 
deficiencies in behavioral learning and conditioning that contribute to 
greater rates of mortality. Second, even if survival of hacked eagles 
was comparable to that of wild-raised eagles, captive-rearing and 
release is not a very efficient means of accomplishing offsetting 
mitigation. For example, only about 20% of wild-fledged golden eagles 
survive to maturity, thus replacing one adult would require producing 
and releasing at least five young under the best of circumstances. 
Third, there is evidence of a high degree of natal philopatry (tendency 
to stay in or return to the home area) among golden eagles, in 
particular, meaning there may be important genetic structure in 
populations that would need to be taken into account in such a program. 
Releasing captive-bred eagles into a landscape where their primary 
sources of mortality are not being addressed and reduced would not 
serve much purpose. Overall, we believe that reducing ongoing mortality 
is a more effective means of offsetting added mortality, and for 
accomplishing golden eagle conservation in general.
    Comment: Many projects have a long life span and a low possibility 
of ``take.'' Here, the Service should provide a flexible method for 
implementing compensatory mitigation over time.
    Comment: Given that the Service cannot predict when programmatic 
take will occur, benefits of proposed compensatory mitigation actions 
should accrue as early in the life of the project as possible.
    Comment: The applicant should, after each 5-year review period, be 
able to apply unused mitigation credits by carrying them over to 
subsequent review periods. Alternatively, these credits should be 
tradable or transferable.
    Comment: Allowing companies to receive credits for excess 
compensation could lead to excess take in some years, especially at the 
local scale. The Service needs to explain how the credit system will 
avoid excess take.
    Service response: Under the approach we envision, permittees would 
be required to provide compensatory mitigation at the outset to offset 
predicted take over 5 years. For permits longer than 5 years, if no 
observed take has occurred in the first 5 years, or if observed take is 
lower than the take already mitigated, the permittee's future 
mitigation requirements would be adjusted downward to allow credit for 
mitigation already accomplished, and to account for the lower-than-
initially predicted observed fatality rate. It would be the same at 
each 5-year interval. If take exceeds the predicted take rate during 
any 5-year period, the permittee would need to provide additional 
compensatory mitigation (and may be subject to additional permit 
conditions). As explained earlier, by ``observed take,'' we are 
referring to take that is estimated using statistically rigorous, 
unbiased, estimators and search protocols.
    Comment: Additional compensatory mitigation should be required only 
in response to changed circumstances previously provided for in the 
permit and applied at the project level consistent with the ``no 
surprises assurances'' provided by ESA incidental take permits. In 
providing this type of assurance, cost uncertainty would be reduced, 
thereby creating a situation where developers/owner operators would be 
more likely to seek full-term permits and to comply with the related 
conservation measures.
    Service response: Additional compensatory mitigation for eagle 
permits would be required if take exceeds the predicted and authorized 
take level or if the best available scientific evidence demonstrates 
that the additional mitigation measures are necessary for the 
preservation of eagles. Also, the Service may require long-term 
permittees to undertake additional conservation measures other than 
those originally contemplated, if they are both practicable and 
reasonably likely to reduce risk to eagles based on the best scientific 
information available.
    Comment: The length of time that the measurable benefits of 
compensatory mitigation persist should meet or exceed

[[Page 27959]]

the length of time of the projected impacts.
    Service response: We agree with this comment, particularly with 
regard to offsetting mitigation, but also in the context of 
compensatory mitigation in general. Compensatory mitigation under these 
permits will be designed to be durable for at least as long as the 
detrimental impacts to eagles from the permitted activity.
    Comment: The Service should set a greater than 1:1 ratio of benefit 
to take. The benefits provided by compensatory mitigation are 
inherently more uncertain than those provided by avoidance of high-risk 
sites and by operational mitigation (also known as Advanced 
Conservation Practices). Until such time as actual field performance 
data is compiled, equivalency standards for compensatory mitigation 
must be more stringent than the computed levels of take. Compensatory 
mitigation should be substantial in order to provide a strong incentive 
for developers to properly site facilities away from eagle use areas.
    Service response: We are proposing to require offsetting mitigation 
for golden eagles at a greater than one-to-one ratio. In addition to 
the reasons provided by the commenter, a greater than one-to-one ratio 
is warranted because our data indicate golden eagles may be already 
experiencing higher take rates than can be sustained and the greater 
than one-to-one ratio is therefore necessary to ensure the permitted 
take is compatible with the preservation of golden eagles.
    Comment: Compensatory mitigation actions should be proven to be 
reasonably likely to deliver expected conservation benefits.
    Comment: The regulations should allow hypothesis-driven, 
scientifically based research to count as part of a mitigation 
strategy.
    Service response: Under this proposed rule, the Service would allow 
compensatory mitigation measures and programs that face more risk and 
uncertainty provided mitigation accounting systems factor in risk and 
adjust metrics, mitigation ratios, and the amount of required 
mitigation to account for uncertainty.
    Comment: A project proponent should not be able to avoid 
compensatory mitigation if the entity proposes a project that fails to 
reasonably consider avoidance or minimization measures. The regulations 
should emphasize and incentivize avoidance in conservation plans and 
institute the full mitigation hierarchy prior to requiring compensatory 
mitigation.
    Service response: Under these proposed regulations, implementation 
of all practicable avoidance and minimization is required in order to 
qualify for an eagle permit.
    Comment: The Service should establish a standardized process for 
reporting and monitoring of compensatory mitigation actions to ensure 
compliance and the delivery of eagle conservation benefits.
    Service response: This comment highlights one of the advantages of 
using mitigation banks, in-lieu fee programs, and other third-party 
arrangements. The third party is responsible for determining what level 
of monitoring is needed and carrying it out. Funds collected will cover 
that monitoring.
    Comment: By calculating the risk of eagle take through a formula 
that does not account for eagle avoidance behaviors (especially with 
the bald eagle), and then requiring compensatory mitigation to 
completely offset the level of assumed take (and, pursuant to the ECPG, 
requiring significant mitigation upfront), the Service sets the 
compensatory mitigation level too high and requires compensation for in 
effect ``phantom'' takes that may never occur. The Service should 
create separate risk models for bald and golden eagles based on their 
biology and behavior, as take estimates are the basis for determining 
the mitigation amounts.
    Service response: As noted in our response to an earlier comment, 
we believe it is reasonable and prudent to consider bald eagles to be 
equally vulnerable to blade-strike mortality as golden eagles unless 
and until verifiable data become available that demonstrate a different 
collision probability for bald eagles. It is also important to 
recognize that the initial model prediction would only be used to 
estimate take for the first five years, after which time the observed 
take rate would be used to update the model prediction for the next 
five years (a process repeated for the life of the project). Any 
mitigation that has been undertaken based on the initial model 
predations that exceed the observed take can be carried forward and 
applied against the updated predicted future take.
    Comment: The Service needs to collaborate with utilities on how to 
select which poles to retrofit and how to identify the highest priority 
areas for mitigation.
    Comment: The Service needs to recognize the cost differences in 
retrofitting different companies' distribution systems. The types of 
equipment and size, height, and location of the power pole being 
retrofitted will affect the cost to complete. Utilities must calculate 
specific cost or value according to pole type and the scope 
modification to determine a cost to retrofit.
    Comment: The ECPG calculates the average cost of retrofitting per 
pole to be $7,500, which underestimates the cost of retrofitting the 
average pole. In addition, the Service has also underestimated the life 
of a pole at 10 years. The age and cost to replace poles vary greatly. 
Costs to modify poles (particularly for transmission voltage) cost more 
than $7,500 per pole depending on the type of work done, voltage, 
location, climate, etc. The Service should work with electric utilities 
to ensure appropriate costs are considered and that pole modification 
programs are effective and durable.
    Service response: Working with APLIC, the Service has updated the 
resource equivalency analysis in the ECPG and re-run the model to come 
up with a ``generic'' replacement cost for determining what the per-
eagle contribution to a mitigation fund should be with respect to power 
pole offsets. We expect details on costs per pole to retrofit, life of 
retrofits, evidence retrofits are of risky poles, etc., will be handled 
by the mitigation fund administrator (and selection panel), likely 
involving submission of proposals from potential recipients of the 
retrofits before funds were allocated. Such a process could account for 
actual costs on a case-by-case basis.

Permits for Taking Eagle Nests

    Comment: The definitions found in the current regulations make 
sense, but they conflict with how similar terms are used in scientific 
literature.
    Service response: We are proposing in 50 CFR 22.3 revised 
definitions applicable to eagle nests that are more consistent with 
terminology used in scientific literature.
    Comment: Additional definitions should be added to the regulations, 
including the following:
     Active Nest--this definition would serve to clarify the 
types of breeding behavior or evidence needed to prevent the take of a 
nest during a particular breeding season.
     Active Territory--this definition would supplement the 
existing definition for area nesting population and relate to one 
breeding pair making a nesting attempt within an established breeding 
territory.
     Inactive Territory or Historical Territory--this 
definition would aid in dealing with a scenario where nest structures 
are observed but no evidence

[[Page 27960]]

of use has been documented for a specific period of time.
     Alternate Nest--this definition would apply to a 
documented nest used by a breeding pair within the same territory in 
which an applicant has applied for a nest removal permit.
     Nest condition--this definition would describe the 
qualitative evaluation of nest conditions used to determine the 
likelihood of repeat nesting at this site.
     Nonviable Nesting Structure or Historical Nest Site--this 
definition would define a structure that has not been used for a period 
of time or has been damaged from environmental conditions.
     Existing Disturbance Regime--this definition is to provide 
a qualitative evaluation of the baseline conditions for which a new 
disturbance is proposed. For example, if an existing operation is 
ongoing and eagles chose to nest nearby, this circumstance needs to be 
considered when evaluating ``take'' or the risk for potential ``take.''
    Service response: Most of these terms are not used in the 
regulations and neither are the concepts embodied in them, so for 
those, no definitions are needed. We are proposing a definition of 
``nesting territory,'' but nothing in these proposed regulations hinges 
on whether the territory (rather than the nest) is currently occupied 
by breeding eagles. We also are proposing a definition for ``alternate 
nest,'' but the proposed definition is more aligned with how the term 
is used in scientific literature than what is being suggested by the 
commenter. In our proposed definition, a nest is ``alternate'' in 
relation to a nest that is used, rather than in relation to the nest 
being considered for removal. Under our proposed definition, an 
alternate nest may be the one for which a nest take permit is sought.
    Comment: The high standard in the current regulations that limits 
nest removal to limited situations should be retained. It has 
contributed to the preservation of bald eagle nesting habitat and the 
persistence of historic nest territories in Florida.
    Comment: In addition to situations that present human health 
hazards, the Service should retain the authority to issue nest removal 
permits in instances of extreme hardship, such as a new nest 
constructed following acquisition of a small housing lot.
    Comment: The regulations should be revised to allow nests to be 
removed to alleviate a threat of significant property damage.
    Comment: Permits for removal of bald eagle nests should be less 
stringent and easier to acquire, without requiring applicants to 
provide ``net benefits'' to eagles or mitigation.
    Comment: Additional circumstances that indicate a nesting pair may 
continue to be viable, such as the identification of an alternative 
nest within the territory, should allow for removal of one nest without 
requiring ``net benefit'' measures.
    Comment: The regulations should maintain the current standards with 
respect to the ``net benefit'' requirement for removal of inactive 
nests, including further clarifications and a clear definition of what 
constitutes a ``net benefit.''
    Service response: We are proposing to retain the standard that, in 
cases other than health and safety or obstruction of human-built 
structures, a successful applicant for an eagle nest removal permit 
must provide a net benefit to eagles. The standard helps to protect 
historic nest sites. In other cases, such as a new nest constructed on 
a residential lot, the requirement to provide a net benefit should not 
be unacceptably onerous. Generally speaking, when new eagle nests are 
being established in areas with high human density, this activity 
indicates the eagle population is expanding, and removal of a new nest 
in a thriving population will have little or no long-term impact to 
that population. A relatively small contribution to the national 
mitigation fund would allow monies to be leveraged for maximum benefit 
for eagles. Funding could be applied to improve conditions for eagles 
by improving habitat somewhere where there is likely to be less 
conflict from human activity or other eagles. Under the existing permit 
system, an example of a net benefit we required in a nest removal 
permit we have issued is a requirement to provide two alternative nest 
platforms for eagles that once used a nest tree whose destruction was 
permitted for a railway spur line. We are not proposing a standard 
definition of what constitutes a net benefit, and will continue to 
assess net benefit on a case-by-case basis. There is too much 
variability in nest sites and the circumstances surrounding them that 
determine the value of the nest to eagles to allow for a one-size-fits-
all definition. However, we will continue to require mitigation in 
proportion to the impacts and we anticipate that the examples provided 
here are the types and magnitude of net benefit compensatory mitigation 
we would require for permits for removal of eagle nests for other than 
health and safety reasons.
    Comment: Nest removal should occur outside of the breeding period 
and should occur only when there is an extreme safety situation.
    Comment: Permits should not be made available for removal or 
relocation of active nests with eggs or young for purposes other than 
safety emergencies.
    Service response: We agree with the second comment and are not 
proposing any changes to the current provisions that restrict removal 
of nests with eggs or young to safety emergencies. In response to the 
first comment, we must be able and willing to issue nest take permits 
for active nests to prevent injury or loss of life to humans or the 
eagles associated with the nest.
    Comment: The definition of ``eagle nest'' should have a temporal 
aspect such that a nest that remains unused for 5 consecutive years and 
has deteriorated to an unusable condition is no longer included.
    Comment: Permitting exclusions or streamlined permitting should be 
an option for inactive nest sites, which the applicant can demonstrate 
are degraded and for which removal will not have a detrimental impact 
on preservation of the species.
    Service response: We considered defining eagle nests in a manner 
that would exclude nests that have substantially deteriorated and which 
have been unused for many years, but decided against it. It is rare to 
have verifiable documentation that a nest has consistently not been 
used for many years. Nests could be lost on the incorrect pretext or 
assumption that they have been unused. It is quite unusual for 
applicants to have 5 years of documentation of past eagle use (or 
disuse) of nests. Sometimes nests are substantially destroyed by 
storms, and in most cases, the Service would have no way of determining 
whether eagles are likely to return to that site for breeding purposes. 
If applicants are able to demonstrate the low biological value of the 
site, that is, that eagles are unlikely to rely on it for breeding 
purposes in the foreseeable future, then it would not be difficult to 
provide the net benefit that is required to qualify for a nest removal 
permit.
    Comment: The definition of ``inactive eagle nest'' should be 
revised to extend the time period when a nest is considered not 
currently being used beyond 10 consecutive days.
    Comment: The 10-day period used to define an ``inactive'' nest 
should be reduced to 5 days, particularly for nests where young have 
fledged. The shorter period is sufficient to identify eagle breeding 
activity.
    Service response: We are not proposing to revise the 10-day period 
upward or downward; we have no data

[[Page 27961]]

indicating either that 10 days is insufficient to protect eagles or is 
overly protective.
    Comment: For cases where an inactive nest take permit is sought, a 
standard monitoring methodology should be required for determining the 
status of the nest so that such a determination can be reviewed and 
approved similarly by multiple permitting agencies.
    Service response: We agree that a standard monitoring protocol for 
determining whether a nest is unused for 10 days would be useful, and 
we will consider developing such guidance in the future. Due to the 
size of eagles and the fact that they are easily recognized, we believe 
it is not onerous for even untrained persons to determine whether a 
nest is in use, but it might be advisable to contact the local Service 
field office for guidance to ensure the monitoring activity will not 
disturb eagles.
    Comment: In order to prevent an anticipated (but not yet present) 
emergency situation, permits should not be available to remove nests 
with no eggs or young, but which adults attend for purposes of 
breeding.
    Comment: If the regulations will allow nests that are attended by 
adults but contain no eggs yet to be removed for anticipated safety 
emergencies, the regulations should include a clear decision process 
for what constitutes an anticipated emergency.
    Service response: We have tried without success to develop a 
standard decision process for what constitutes a safety emergency 
beyond the plain meaning of the definition in Sec.  22.3: ``A situation 
that necessitates immediate action to alleviate a threat of bodily harm 
to humans or eagles.'' Emergency situations and potential consequences 
are simply too variable. We do not want to inadvertently create a 
process that could prevent us from issuing a nest removal permit for a 
situation we failed to anticipate or describe.
    Comment: The regulations should allow more flexibility for removal 
of active and inactive nests in urban areas and other areas of 
potential risk to successful nests.
    Service response: Generally speaking, eagle nests in urban areas 
indicate a thriving local population of eagles. In robust populations, 
the relative value to eagle populations of each individual nest is 
lower than in lower density populations. Eagle nests that are of lower 
biological value (including relative to other eagle nests) require less 
mitigation as a ``net benefit'' with the result that there is more 
flexibility to issue permits for their removal.
    Comment: Due to the current population status of golden eagles, 
golden eagle nest removal criteria are more restrictive in nature. 
Mitigation, whether compensatory or replacement, should be implemented, 
by the permit holder, for golden eagles. The destruction of golden 
eagle nests should be avoided, if at all possible, unless the nest is 
posing a safety emergency.
    Service response: We largely agree with the commenter. Golden eagle 
nest take permits will be more restrictive in nature, but without 
including different criteria for the two species in the regulations. 
All golden eagle take permits, except for those authorizing ongoing 
take occurring prior to 2009 will require offsetting mitigation. Our 
view is that regulations should not be species specific; rather, they 
should address specific conditions that could apply to any of the 
species they are designed to protect. The avoidance and minimization 
requirements in the current and proposed regulations are designed to 
ensure that removal of a nest of either species is the last option.
    Comment: If a pair of eagles known to use one nest creates another 
resulting in the abandonment of the original nest, the old nest should 
be considered immediately abandoned.
    Comment: A nest should not be considered abandoned unless it has 
not been used for 5 years, as golden eagles sometimes return to a nest 
after 2 or 3 years.
    Comment: The term ``abandoned nest'' should be clarified so it is 
clear in the literature that both species may have several nests that 
they use on a rotational basis and will pick the current year's nest 
based on things like disturbance.
    Service response: Neither the current regulations, nor the proposed 
revisions, include the term ``abandoned nest'' because that term is 
misleading in this context. In these proposed regulations, a nest that 
eagles are not currently using is referred to as an ``alternate nest'' 
and is still protected because eagles typically use nests on a 
rotational basis and will sometimes return to a previously used nest 
after several years. A 41-year study of golden eagle nests in Idaho 
found that golden eagles used a nest site that had been unused for 39 
years (Kochert and Steenhof, 2012). That study also found that 86% of 
alternate golden eagle nests were used at least one breeding season.
    Nest abandonment is a term used in our definition of what 
constitutes disturbance under the Eagle Act at 50 CFR 22.3. It is not 
relevant to determining the status of nests in a nesting territory and 
is a different concept entirely. In the definition of ``disturb,'' a 
nest is considered abandoned if eagles had been using it, or would have 
used it, during the current breeding season, but did not raise young 
there due to interference or perceived interference. If a proponent's 
action causes nest abandonment, then the proponent has disturbed an 
eagle under the definition and is liable for take. In the definition of 
``disturb,'' nest abandonment does not refer to the long-term status of 
the nest.
    Comment: The Service should evaluate the establishment of nest 
removal permits that would cover the removal of an active nest (without 
eggs or dependent young) or an inactive nest multiple times for the 
same location.
    Service response: The current and proposed regulations allow the 
Service to issue permits to remove nests being built in the same place 
multiple times. We agree that there are circumstances that warrant this 
type of authorization (e.g., when eagles persist in trying to build a 
nest in a location where it would create a fire hazard).
    Comment: The definition of ``area nesting population'' should be 
modified to remove the 10-mile radius because it may not have any 
bearing on the actual home-range of a nesting pair or on the project 
impact area.
    Service response: We agree and are proposing to remove the term 
``area nesting population'' from the two permit regulations where it 
occurs.
    Comment: Establish and clearly define in the management objectives 
acceptable distances from eagle nests necessary to avoid disturbance of 
eagles in a given management area.
    Service response: The Service's recommendations for buffer 
distances and additional guidance for avoiding disturbance of bald 
eagles are contained in the 2007 National Bald Eagle Management 
Guidelines (USFWS, 2007). Ideally, if resources allow, we will revisit 
that document to update our recommendations based on newer data and 
observations of bald eagle behaviors. At this time we do not have 
comparable official guidance for golden eagles, but may issue such 
guidance in the future.
    Comment: Any nest, abandoned or active, that is removed for any 
reason, needs to be accounted for in the 5-year review.
    Service response: We are tracking all authorized take of nests in a 
database to ensure they are accounted for. In most cases where a permit 
authorizes disturbance to breeding eagles, we require monitoring and 
reporting, and we enter the reported status into the database. However, 
it is not always

[[Page 27962]]

feasible to track whether authorized disturbance actually occurred, so 
our database will not perfectly capture all outcomes.
    Comment: When an active nest must be removed, the regulations 
should not always require nestlings or eggs to be placed with a 
rehabilitator. Instead, the language should be: ``In most instances, 
nestlings and viable eggs must be immediately transported to foster/
recipient nests or a rehabilitation facility permitted to care for 
eagles, as directed by the Service. The Service will make the 
determination as to the fate of all nestlings and viable eggs.''
    Service response: We agree that it is not always possible to 
transport eggs or young to a rehabilitator in a safety emergency (the 
only circumstances when removal of a nest with eggs or young can be 
permitted), and we are proposing revisions that would allow us to waive 
the requirement when it is not feasible or humane to carry out.
    Comment: The Service should clarify the type of permit (disturbance 
or nest take) that is needed for temporarily obstructing eagle access 
to nests (prior to nesting season) to prevent disturbance during 
nesting-season construction or maintenance activities.
    Service response: The appropriate authorization for temporarily 
obstructing eagle access to a nest is a permit for disturbance. 
Although some eagle nest take involves disturbance, nest removal 
permits authorize destruction, removal, relocation of, or persisting 
damage to, a nest.

Low-Risk Category

    Comment: The Service should revise the definition of ``low-risk'' 
to include projects with slightly higher probability of taking eagles, 
provided the cumulative impacts would be compatible with eagle 
management objectives. The current definition represents such a low 
level of risk that the burdens of issuing take permits for both 
developers and the Service outweigh the benefits of the permitting.
    Comment: The Service should exempt issuance of permits for projects 
with low effects or ``low risk'' by establishing a new categorical 
exclusion for them in its NEPA regulations. Given the Service's 
conservative take estimates and limited resources in its permitting 
program, a categorical exclusion for low-risk projects would be 
reasonable from the Service's and project proponents' standpoint.
    Comment: The Service should establish criteria to identify low-risk 
activities and set up a more streamlined permit process to address 
these circumstances. For example, there could be a one-page permit 
criteria checklist submitted with the ``take'' permit application that 
qualifies a project for an exemption from NEPA or advanced conservation 
practices.
    Comment: The Service should redefine the probability of take 
percentage for ``low-risk'' projects such that projects with the 
probability of take of 0.03 or lower should be able to address their 
potential impacts through the development of non-permit-based 
conservation strategies.
    Comment: The Service should modify the low-risk threshold from 0.03 
eagles per year to 0.17 eagles per year. Annual take probabilities of 
0.17 eagles per year are the lowest that produce 30-year take 
probabilities rounding to 1.0 at two significant digits.
    Comment: The Service should consider developing a ``Nationwide'' 
permit program, similar to the Section 404 Clean Water Act permits that 
allow for projects to qualify under specific categories (low-risk). 
These instances would permit take within an established threshold per 
category.
    Comment: The Service should broaden the category of ``low-risk'' 
projects established in the ``Duration Rule'' to include any projects 
that are likely to take more than 0.03 eagles per year. The definition 
of low-risk should be clearly defined and based not only on anticipated 
project take (mortality and disturbance), but also on habitat 
modification. ``Low-risk'' should also be defined in the context of 
cumulative risk to regional and local eagle populations.
    Service response: We agree that the former definition of ``low-
risk'' projects is counter-productive and needed to be revised or 
eliminated. ``Low-risk'' was defined in a footnote to 50 CFR 
13.11(d)(4) as a project or activity that is ``unlikely to take an 
eagle over a 30-year period and the applicant for a permit for the 
project or activity has provided the Service with sufficient data 
obtained through Service-approved models and/or predictive tools to 
verify that the take is likely to be less than 0.03 eagles per year.'' 
This definition covered only those projects where take is essentially 
negligible, and, therefore, the project does not require a permit. The 
definition has been removed from the regulations in complying with a 
district court decision that vacated parts of the 2013 regulations that 
established the definition.
    We still see utility in redefining ``low-risk'' to include projects 
with a slightly higher probability of taking eagles, but which 
cumulatively will still be compatible with eagle management objectives. 
However, we were not able to develop a definition of ``low-risk'' that 
could be applied throughout the United States while achieving the 
desired goals for such a category. The Service considered a variety of 
criteria and/or metrics for the low-risk category, but each approach 
resulted in significant discrepancies because of on-the-ground 
differences in eagle population densities and resilience, habitat 
variability, and project scales. Therefore, we are not including a 
revised definition of low-risk projects into these proposed 
regulations.
    Although the proposed regulations changes do not include a category 
for low-risk, we agree that streamlining the process for projects that 
clearly demonstrate a likelihood of take being relatively low based on 
siting and/or project design is a worthwhile goal. We plan to continue 
our efforts to identify and establish a category of low-risk projects 
that, without having to conduct required pre-application surveys, could 
qualify for eagle take permits. We welcome comments on defining low-
risk activities and potential criteria for developing an authorization 
process that minimizes costs of compliance and the demand for agency 
resources for projects that will result in no more than minimal adverse 
effects on eagles for our consideration in the future. Comments should 
focus on (1) metrics that would be necessary to establish a category of 
low-risk projects, (2) informational requirements, if any, for the 
application and (3) appropriate terms and conditions to qualify for a 
nationwide eagle take permit.
    Comment: The Service should consider some types of projects as low-
risk to nesting and roosting bald eagles, specifically those that are:
     Similar to existing activities that eagles in the area are 
accustomed to;
     Of limited duration, occurring no more than several days 
at a time;
     Implementing various minimization measures to reduce 
impacts to eagles; and
     Not going to have a project noise level above 92 decibels.
    Comment: Criteria to evaluate whether a project is considered low 
risk should include:
     Proximity and view shed of proposed disturbance in 
relation to nesting habitat;
     Landscape-level migration patterns;
     Quality of potential foraging habitat;
     Project activities that have a potential interaction with 
eagles or eagle habitats;
     Timing of projects (short-term/long-term, within or 
outside of breeding season); and

[[Page 27963]]

     Specific operational practices (applicant-committed 
protection measures).
    Comment: If a project is beyond the Service-recommended buffer 
distance from an eagle nest, the project should be considered ``low 
risk'' and the permit issued under a simplified and shortened 
application/approval permit process.
    Service response: These comments incorporate good guidance for how 
to evaluate whether disturbance is likely to occur. We consider these 
types of elements when potential applicants contact us with questions 
about whether their activities are likely to disturb eagles. If we 
determine the risk of disturbance is low, we advise people that a 
permit is not needed.

Research

    Comment: The Service should establish regular, consistent surveys 
to assess changes in population.
    Service response: Our plan is to conduct surveys on a 6-year 
rotation: One set of paired summer-winter golden eagle surveys in the 
first and second and fourth and fifth years of each assessment period, 
and to conduct bald eagle surveys in years three and six.
    Comment: The Service should undertake a well-defined research 
program that explores potential innovations in ACPs to supplement a 
menu of validated, effective measures.
    Service response: Private industry has the responsibility to avoid 
and minimize take of eagles from their activities. Accordingly, 
industry should fund research needed to identify measures to reduce the 
risk to eagles posed by their activities. The Service will contribute 
expertise regarding eagle biology and behaviors to the degree our 
resources allow.
    Comment: The Service would have an opportunity to use utility data 
if the Service facilitates use of the reporting system and provides a 
guarantee of security of the data.
    Service response: Data on avian mortalities is needed to help us 
understand risks to eagles and other birds and prioritize management 
decisions. We have developed a new data system that will allow 
companies to input, view, and manage such data. For more information on 
the Service's Injury and Mortality Reporting System, go to: https://www.fws.gov/birds/management/project-assessment-tools-and-guidance/imr.php. The data is accessible by select FWS staff, but not viewable 
by any other system users. In the event of a request for information 
from the public, we will provide summarized data but would withhold any 
information exempted from release under FOIA, including confidential 
business information and personal information protected by the Privacy 
Act. This may include information that would identify the submitter, or 
any other details that would point to a particular company, unless the 
company approves release of this information.
    Comment: The Service should actively pursue research on many 
factors that affect long-term population status of eagles in a changing 
landscape, including climate, prey populations, wind-farm losses, 
electrocutions, and lead poisoning.
    Service response: We agree with this comment, and are engaged in 
various research projects to assess how various factors affect eagle 
populations.
    Comment: The Service should use modeling to simulate populations of 
known structure that are then impacted at known (simulated) levels as a 
means to inform decisions. The substantial body of knowledge on bald 
eagles could serve as an initial benchmark for developing simulation 
models for golden eagles.
    Service response: The Service has developed and is using these 
types of population models for both bald and golden eagles.

Other

    Comment: Penalties need to be increased, so violations are not just 
a minor cost of doing business.
    Service response: Penalties applicable to eagle take are 
established by Congress in the statute itself. The Service does not 
have the ability to modify those penalties.
    Comment: Any dollars that come from enforcement and fines should be 
applied to fund eagle research.
    Service response: Congress has enacted a number of laws that limit 
the use of fines and penalties assessed as part of the criminal or 
civil enforcement of wildlife laws. In general, these statutory limits 
are directed at protecting the Federal appropriations process through, 
for example, prohibiting the augmentation of a Federal agency's budget 
or funding a Federal program and by requiring that any money received 
``for the Government'' from any source be deposited into the United 
States Treasury as miscellaneous receipts unless a law provides 
otherwise for retention and use of the funds. While there are 
opportunities within these congressionally mandated constraints for 
enforcement actions to recognize funding of eagle research, application 
of Federal fiscal law mandates and how they apply to enforcement 
actions can be complex and are addressed on a case-by-case basis, 
taking into account the Federal laws applicable to the facts of a 
particular situation.
    Comment: The Service should revise the definition of ``programmatic 
take'' to allow a programmatic take permit even if only indirect 
effects would cause a ``take'' or a ``disturbance.''
    Service response: We reviewed internal staff discussions that 
occurred during development of the 2009 regulations about how the 
Service should define ``programmatic take,'' and we believe the phrase 
``and not caused solely by indirect effects'' was included because of 
concern that people would request permits to cover effects to eagles 
that were too attenuated to constitute take under the Eagle Act (e.g., 
actions that gradually affect climate and lead to decreases in the prey 
base). Now, however, the scope of prohibited take under the Eagle Act 
is better understood both within and outside of the Service, and we are 
less concerned that people will seek permits for attenuated effects 
that do not actually constitute take. Under this proposed rule, the 
category and definition for programmatic take would be eliminated. 
However, because we believe that it is appropriate for permits to cover 
take that is caused by indirect effects, particularly in light of our 
proposal to extend maximum permit duration to 30 years, nothing in 
these proposed regulations would prevent us from issuing such permits.
    Comment: The Service should consider shifting the focus of the 
programmatic permit program from a lethal take focus to the 
conservation of eagles and their habitat.
    Service response: The Eagle Act, unlike how the ESA protects ESA-
listed species, does not give the Service authority to protect or 
otherwise regulate eagle habitat (other than eagle nests and habitat 
destruction that directly causes lethal take or disturbance), but we 
can and do protect habitat as mitigation for permitted take. At 
present, habitat loss is not the limiting factor for growth of either 
species.
    Comment: The Service should conduct a national programmatic wind 
EIS and use it to identify areas where wind energy cannot be developed 
due to unacceptable risk to public trust resources, including eagles 
and other federally protected birds and bats.
    Service response: The Service does not have the authority to 
regulate where wind energy facilities can be sited. We have developed a 
variety of tools for assessing whether a given area is likely to pose a 
high risk to eagles or other birds if developed for wind power (see

[[Page 27964]]

the ECPG), and we encourage developers to avail themselves of those 
tools prior to siting wind energy projects.
    Comment: The preamble to the 2009 permit regulations, Final 
Environmental Assessment conducted for those regulations, and the ECPG 
all identify projects in operation prior to 2009 as being part of 
baseline conditions on which take thresholds were established. In 
practice, however, the Service has been inconsistent about how to treat 
such projects. The Service should clarify the extent to which 
mitigation is required for pre-2009 projects.
    Comment: The Service should treat known permitted take that 
occurred prior to 2009 as measureable when considering additional take, 
and not consider it ``baseline.''
    Service response: Take occurring prior to 2009 will still be 
considered part of the baseline with regard to compensatory mitigation 
requirements (i.e., none will be required). For developments already in 
operation that have taken eagles prior to the permittee applying for a 
take permit (available since 2009), the Service will work with the 
applicant to resolve any unpermitted take when applying for a eagle 
incidental take permit. The Service has developed a template eagle take 
settlement agreement to provide consistency and transparency in our 
enforcement actions.
    Comment: Section 22.11(c) should be revised to state: ``You must 
obtain a permit under part 21 of this subchapter for any activity that 
also involves migratory birds other than bald and golden eagles, and a 
permit under part 17 of this subchapter or a statement under Part 402 
for any activity that also involves threatened or endangered species 
other than the bald eagle.''
    Service response: We are proposing revisions to accomplish what 
this commenter proposed, i.e., allowing the use of section 7 where 
appropriate to cover effects to ESA-listed species. We believe the 
current wording, which requires the use of an ESA permit even for 
Federal applicants, is the result of an oversight by the original 
crafters.
    Comment: A panel of eagle experts and eagle biologists should begin 
a review of the Eagle Act. The Eagle Act is old, very expansive, less 
complete, and harder to enforce than the more current Migratory Bird 
Treaty Act (MBTA) and ESA, and it does not work well with current 
regulations.
    Service response: We, too, have identified areas where we believe 
the Eagle Act could be improved, but as a Federal Executive Branch 
agency, the Service cannot write or enact legislation. Statutory 
amendments must be made by Congress.
    Comment: The Service should move forward with the development of a 
permitting process under the MBTA to augment those now available under 
BGEPA and ESA.
    Service response: We are in the process of developing regulations 
to authorize incidental take under the MBTA. We published a notice of 
intent to prepare an EIS on May 26, 2015 (80 FR 30032), and held four 
scoping meetings in different U.S. cities. For more information, go to: 
https://birdregs.org/.
    Comment: The Service needs to enforce the ESA, BGEPA, and MBTA when 
it comes to all energy development, whether traditional or alternative. 
Shut down or relocate wind energy sites that greatly exceed their take 
limits for federally protected species, especially if mitigation proves 
ineffective in reducing bird (and bat) mortality. This means more 
prosecutions for violation of the laws and predictable consequences for 
noncompliance.
    Comment: Wind turbines with predictable eagle mortality should not 
be permitted, and those already permitted with future predictable 
mortality should be taken offline.
    Service response: The Service does not have the authority to shut 
down, relocate, or take offline energy facilities. We have the 
authority to bring enforcement actions against facilities that take 
eagles without permits or that violate the conditions of their permits, 
and we do. We also can and do issue permits that require conservation 
measures and compensatory mitigation. We disagree that wind turbines 
with predicted mortality should not be permitted; if mortality is not 
predicted to occur, wind companies do not need permits. Through Service 
guidance and in these proposed regulations, we discourage the siting of 
facilities in areas of high risk to eagles, but our authority does not 
extend to actually being able to prevent developers building there 
despite our recommendations.
    Comment: The 2013 revisions to the permit regulations provide that 
the Service will make reported injury and mortality data available to 
the public. The regulation should clarify whether the Service will 
publish/post this data, or whether it will be available only upon 
filing a request under the Freedom of Information Act.
    Service response: We intend to post cumulative reported mortality 
data summarized to a State and flyway level on a Web site that can be 
viewed by the general public.
    Comment: The scoping process documents mention timber harvesting as 
an activity for which a programmatic permit may be appropriate. 
However, timber harvesting should not qualify for programmatic permits 
because the current eagle management guidelines for timber harvesting 
are quite easy to follow.
    Service response: We appreciate this comment. It is true that no 
timber companies have approached us for a programmatic permit. That 
said, if a timber company approaches the Service for a long-term 
permit, we would consider the merits of its application. Also, the 
National Bald Eagle Management Guidelines were developed specifically 
for bald eagles and are not necessarily the best guidance for avoiding 
golden eagle disturbance.
    Comment: Bald eagle populations continue to grow exponentially in 
much of the country, and as these populations grow, so does the amount 
of incidental take. Therefore, a set amount of authorized take over a 
period of time (i.e., 30 years) can be unpredictable and impractical. 
As long as the population growth exceeds the take and the overall goal 
of stable or increasing bald eagle populations is being met, no 
individual permits would be necessary.
    Service response: First, the Eagle Act requires a permit for bald 
eagle take: ``Provided further, 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) Second, without 
individual permits, we could not require avoidance, minimization of 
impacts, and compensatory mitigation, much less track how much take is 
occurring in order to ensure that take is not exceeding the level at 
which populations would start to decline.
    Comment: The Service could implement a programmatic industry permit 
with NEPA tiering as the Service uses for permits issued under the ESA.
    Comment: The Service should consider issuing programmatic take 
permits to cover a company's entire service territory.
    Comment: As neither the Eagle Act nor the actual regulations 
require that eagle take permits be available solely for individual 
projects, the Service should allow for multi-project/facility permits 
for bald eagles or regional permits that can serve as umbrella permits 
for individual projects.
    Service response: All of the scenarios mentioned by these 
commenters are available under the current and

[[Page 27965]]

proposed regulations. The Service does have some constraints based on 
our administrative structure. For example, although not precluded by 
our regulations, it would be an administrative challenge for us to 
issue permits to multiple companies for multiple types of activities 
that cross Service regional boundaries (administrative jurisdictions). 
It might be more efficient to pursue multiple, less complicated 
permitting options in such cases.
    Comment: The regulations and guidance documents should address the 
roles and responsibilities of other permitting agencies. For example, 
if a project involving the removal of an inactive nest is being 
evaluated in a Bureau of Land Management (BLM) document and with 
appropriate consultation, the Service would allow the BLM to become the 
lead agency and establish appropriate mitigation, which would then be 
written into the ``take'' permit. This provision would allow for a 
streamlined approach for permitting and NEPA.
    Service response: We agree that approaches such as that described 
by this comment make sense. We also think it would be beneficial to 
develop guidance for how to work with other agencies when issuing eagle 
permits, and plan to do so as resources allow.
    Comment: No industry should be given priority over another. For 
example, a permit to support a wind energy project should not be given 
precedence over a permit to support a mining operation.
    Service response: We do not give priority to any type of industry. 
If for some reason, we could permit only one of several interested 
industries, we would issue the permit on a first-come, first-served 
basis.
    Comment: The regulations should require permittees to allow access 
to State wildlife agency staff to monitor permit compliance. Currently, 
the regulations require permittees to allow Service personnel and other 
qualified persons designated by the Service such access.
    Service response: We cannot unilaterally create requirements for 
permittees that pertain to governmental agencies other than ourselves. 
We would have to coordinate with each State agency on a case-by-case 
basis. Many States do not want the extra burden of sharing management 
of a Federal permit program. We are pleased to work with any particular 
State that has the desire and resources to train and allocate staff to 
monitor eagle permits.
    Comment: A portion of the permit fees should fund a permit writer 
in each regional office dedicated to eagle permits. This arrangement 
will allow for consistency and efficiency in processing applications 
and meeting permit timelines.
    Service response: Permit application processing fees are returned 
to the Regional Permit Office that issued the permit and are invested 
into administration of the permit program.
    Comment: The fees for these programmatic permits increased 
substantially. The money from these fees should be used for wildlife 
conservation, mitigation, and monitoring in the region affected.
    Service response: The programmatic permit application processing 
fees increased in 2013 because we learned from experience that they 
require much more staff time than we had originally anticipated. At 
this time, we estimate the fees are still not enough to recoup the 
costs of the technical assistance we provide during the permit 
application development phase for complex, long-term permits, so there 
is no ``extra'' money to be used for conservation work.
    Comment: The rule should incorporate provisions to allow land 
managers to engage in habitat management activities that are beneficial 
to wildlife or plants, such as prescribed burns, natural community 
restoration, and nuisance species abatement, without liability for 
temporary disturbance to eagle.
    Service response: If ``temporary disturbance'' is used in this 
comment to refer to mere annoyance and disruption, then a permit is not 
necessary because no take is occurring. For ``temporary disturbance'' 
to meet the regulatory definition of disturb, there has to be a 
biological effect to eagles in the form of injury or loss of 
productivity. For golden eagles, because their populations are not 
growing, any substantial injury or loss of productivity is likely to 
have population effects. For that reason, we think a permit is the 
appropriate tool to authorize those effects because of the conservation 
measures and compensatory mitigation required under permits. For bald 
eagles, the Eagle Act does not allow the Service to authorize take 
unless it is done under a permit (16 U.S.C. 668a). We recognize the 
importance of prescribed burns, habitat restoration, and nuisance 
species abatement, and have issued a number of permits that cover 
disturbance to bald eagles from prescribed burns. These permits 
generally contain only reasonable--``no fuss''--conditions. We will 
continue to issue eagle permits to our partners for activities that 
benefit wildlife in an expeditious manner that best serves our common 
goals.
    Comment: The slow pace of the eagle permitting process often leaves 
projects at risk of unauthorized take between the time the project is 
constructed and when the permit is issued. The Service should provide a 
mechanism such as a Technical Assistance Letter that includes a set of 
criteria under which a project receives some level of protection from 
prosecution during the interim period.
    Service response: If project proponents are engaged in the 
permitting process in good faith, that is, with an actual interest in 
obtaining a permit, they should have a reasonable expectation that any 
take that occurs during the technical assistance phase will have a low 
priority for enforcement by the Service. Issuance of a letter ``with a 
set of criteria'' could generate substantial staff time equivalent to a 
mini permit process while not affording the project proponent legally 
sufficient relief from liability. We believe our resources are better 
served by focusing on the process of issuing the actual permit.
    Comment: When a permit is transferred to another entity, the 
original permit holder should be responsible for all mitigation 
requirements that were required during the period of their ownership. 
Allowing the new permittee to take responsibility for the outstanding 
mitigation requirements may provide a disincentive for the original 
permit holder to carry out the mitigation.
    Service response: The original permit holder is responsible for any 
mitigation that is required while the permit is in his or her name. If 
some conservation measures are not finished or have not yet been 
undertaken but were not anticipated to have been completed at the time 
of permit transfer, it is logical that whoever takes over the permit 
will be responsible for those measures. If the original permittee has 
neglected to implement conservation measures that were required to be 
done while the permit was in his or her name, the permittee could face 
an enforcement action. However, if the subsequent permittee agrees to 
carry out the outstanding mitigation and the resulting implemented 
mitigation will be the same as if the original permittee did it, we 
have no objection to two parties entering into such a contract.
    Comment: Implementation of Avian Protection Plans allows for a 
cooperative model to address concerns, rather than through a more rigid 
permitting scheme that adds cost to avian protection activities. To 
maintain this flexibility, development and implementation of APPs 
should remain

[[Page 27966]]

a viable option to address the same concerns that a 30-year 
programmatic permit would address.
    Service response: We support development and implementation of APPs 
and Eagle Conservation Plans, but such plans are not permitting 
instruments and cannot remove liability for eagle take. It is the 
project proponent's choice as to whether to apply for a permit, but we 
wonder why, after going to the effort to develop a sound APP or ECP 
that would provide comparable conservation measures for eagles as would 
a permit, a project proponent would not want to secure the protection 
from liability that a permit confers.
    Comment: A programmatic permit to take golden eagle nests under 
Sec.  22.25 (removal of nests for resource development and recovery 
operations) should be the same length of time as other programmatic 
permits and should not contain more stringent requirements to obtain a 
permit than what would be authorized under Sec. Sec.  22.26 and 22.27.
    Service response: We may consider extending the permit duration of 
Sec.  22.25 permits if we open those regulations up for more 
substantial revisions in the future. Doing so would essentially allow 
for recurrent take of eagle nests for resource development and 
recovery. However, we question how often there would be a need for 
recurrent take authorization for resource development and recovery 
operations. Also, we do not perceive any other provisions in those 
regulations that are more stringent than what is required under Sec.  
22.27 permits. In any case, a project proponent engaged in resource 
development and recovery can apply for take authorization under Sec.  
22.27 if he or she prefers the terms and conditions of that permit to 
those of Sec.  22.25.
    Comment: Similar to the ESA and its implementing regulations at 50 
CFR 17.31, the eagle permit regulations should include provisions for 
State wildlife agencies to take eagles as part of the agencies' 
management activities, for example, aiding injured or sick individuals, 
disturbing eagles while undergoing habitat management, salvaging 
carcasses, euthanizing mortally wounded eagles, and removing nests for 
specific management purposes.
    Service response: Because of the requirement that a permit be 
issued to authorize bald eagle take, we cannot authorize this take 
through regulations that exempt a party from the permit requirement, as 
is done under 50 CFR 17.21 and 17.31 for ESA-listed species, and 50 CFR 
21.12 for migratory birds other than eagles. To achieve the same ends, 
however, we issue a ``master'' permit to the directors of each State 
wildlife agency that allows for the range of activities listed by the 
commenter.
    Comment: The regulations should clarify ``disturbance'' as it 
relates to eagle take and how the Service may use disturbance to infer 
a permit requirement.
    Comment: The Service should establish and clearly define in the 
management objectives acceptable distances from eagle nests that are 
necessary to avoid disturbance of eagles in a given management area.
    Service response: The Service defined ``disturb'' under the Eagle 
Act in a 2007 rulemaking (72 FR 31132, June 5, 2007) (codified at 50 
CFR 22.3). The preamble to that rulemaking clarifies how the term is to 
be understood and applied. Our recommendations for buffer sizes and 
timing restrictions for activities around bald eagle nests are set 
forth in our 2007 National Bald Eagle Management Guidelines. We do not 
at this time have a similar guidance document for how to avoid golden 
eagle disturbance, but hope to develop one in the future. For more 
background on other eagle-related rulemakings and guidance documents, 
visit our eagle management Web page at: https://www.fws.gov/birds/management/managed-species/eagle-management.php.
    Comment: The revised regulations should clarify if the provisions 
of the Eagle Act usurp the authority of the ESA. The Service has made 
it difficult or impossible to obtain a permit to remove a golden eagle 
nest to protect California condors at their release site.
    Service response: The ESA and the Eagle Act should be read together 
to avoid conflicts. Neither law usurps or trumps the other. The 
Service's preferred approach is to balance the interests of the various 
species it is mandated to protect. That approach has entailed 
consideration of other feasible alternatives before authorizing removal 
of a golden eagle nest, but eventual removal for such purposes remains 
a potential solution if other alternatives do not work.
    Comment: New regulations should provide more information as to what 
other entities are expected to apply for programmatic permits. Will the 
regulations affect the aviation industry if there are more eagle 
strikes? Will they apply to State natural resource agencies if there is 
an increase in nontarget eagle catch associated with recreational 
trapping?
    Service response: Permits would remain available under these 
proposed regulations to any person, organization, agency, or business 
that wishes to receive authorization for recurrent take of eagles. 
Experience so far is that airports have been more interested in permits 
to remove nests in the vicinity of airfields rather than permits to 
cover eagle strikes. Persons wishing to apply for eagle take permits 
for incidental take of eagles associated with trapping would apply to 
the Service, not to State natural resource agencies. If there have been 
increases in nontarget eagle catch by recreational trappers, the 
Service will consider bolstering educational efforts to reach trappers 
to ensure they understand such take is illegal and they must make every 
effort to avoid incidentally taking eagles.
    Comment: The Service should establish an interagency consultation 
process for authorizing eagle take similar to that provided by ESA 
section 7(a)(2).
    Service response: The ESA section 7 process is an exemption from 
the prohibitions of take, not an authorization for take. The Eagle Act 
does not provide for such exemptions and does not contain provisions 
mandating a consultation process for federal agency actions that may 
result in eagle take.
    Comment: A condition of permits to wind companies should be to pick 
up all dead birds as often as possible to minimize the risk to 
scavenging eagles.
    Service response: The Service supports and often requires removal 
of animal carcasses to reduce eagle mortalities, but it is unclear 
whether bird carcasses have the same attractant qualities for eagles as 
dead livestock and other mammals. There may be circumstances where we 
would condition wind companies to remove dead birds from the site, but 
we do not agree that requirement should be a provision of every 
incidental take permit we issue to a wind energy facility. We 
explicitly do not want facilities to pick up dead eagles, and we have 
required protocols for contacting our Office of Law Enforcement when 
that happens. Sometimes, other birds protected under the MBTA must be 
left where they are killed for enforcement reasons. Some companies are 
conducting research to determine the effectiveness of different 
fatality monitoring protocols, and picking up carcasses could interfere 
with those studies. Additionally, some wind companies have also 
received migratory bird Special Purpose Utility Permits to monitor for 
purposes of methodically tracking where take occurs and collect the 
carcasses for identification and/or to prevent counting the same 
fatality twice.

[[Page 27967]]

    Comment: The USFWS should reconsider the concept of ``depredation'' 
as applied to golden eagle take for the purpose of falconry. As with 
wildlife, golden eagles that fly into windmill power generators, with 
lethal results, become depredation involving wildlife. Therefore, 
incidental take of golden eagles by wind farms is ``depredation'' 
within the meaning of the Eagle Act, which allows golden eagle take at 
wind facilities for falconry purposes. Falconers permitted to trap 
golden eagles prior to entering a ``wind farm'' are undertaking the 
first mitigation priority--``avoiding'' the potential of lethal take by 
the windmills. Golden eagles taken in this manner could be relocated to 
another safer area, with a small percentage of these ``mitigated'' 
eagles available for falconry purposes.
    Service response: Depredation does not mean accidental killing. A 
review of several American English dictionaries consistently brings up 
the following definition for ``depredate'': ``plunder and pillage.'' 
The eagle itself must be doing the depredating, not the wind turbines, 
and an eagle that is killed by colliding with a turbine blade is not 
plundering itself. Under the Eagle Act, falconers cannot take any 
eagles except depredating eagles, so even if we supported the proposal 
to relocate eagles from wind energy facility sites, falconers could not 
legally retain them. With regard to whether a falconer--or anyone 
else--is undertaking avoidance by removing golden eagles from the area 
of a wind turbine, we do not agree: Routine eagle presence in the area 
of a wind facility indicates the area is good eagle habitat. Removing 
eagles out of a territory with good foraging opportunities and nest 
sites will result in new or the same eagles returning as long as the 
prey and site characteristics remain. Rather than creating a population 
sink by continually removing eagles and relocating them to areas where 
they may not be able to establish successful territories, the best way 
to avoid eagle take at wind energy facilities is to site those 
facilities outside of good eagle habitat and migration corridors.

Public Comments

    We request comments or information from other concerned 
governmental agencies, Native American tribes, the scientific 
community, industry, and other interested parties concerning this 
proposed rule. We also welcome comments on defining low-risk activities 
and potential criteria for developing a general permit to minimize the 
costs of compliance for the public and the demand for agency resources 
for projects that will result in no more than minimal individual and 
cumulative adverse effects on eagles for our consideration in the 
future. While comments related to low-risk or general permits would be 
outside the scope of this rulemaking action, we would keep them for 
consideration if we decide to pursue further rulemaking in the future. 
You may submit your comments and supporting materials by one of the 
methods listed in ADDRESSES. We request that you submit comments by 
only one method. We will not consider comments sent by email or fax, or 
written comments sent to an address other than the one listed in 
ADDRESSES. If you submit a comment via https://www.regulations.gov, your 
entire comment--including any personal identifying information--will be 
posted on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request that we withhold this 
information from public review, but we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at https://www.regulations.gov, or by 
appointment, during normal business hours, by contacting the person 
listed above under FOR FURTHER INFORMATION CONTACT.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this proposed 
rule is significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish 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 businesses, 
small organizations, and small government jurisdictions. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule would not have a significant economic impact on a 
substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. We have examined this proposed 
rule's potential effects on small entities as required by the 
Regulatory Flexibility Act and determined that this action would not 
have a significant economic impact on a substantial number of small 
entities.
    In the first 6 years (FY 2010 through FY 2015) since the eagle 
permit regulations at 50 CFR 22.26 and 50 CFR 22.27 were published, the 
Service has received 626 permit applications for the two permit types 
and issued approximately 490 permits, including renewals. Of those, we 
estimate 410 permits were issued to small businesses. Over those 6 
years, the annual number of applications received (including for 
renewals) increased from 50 per year in FY 2010 to 140 per year in FY 
2015.
    We received a total of 34 programmatic permit applications and have 
issued one programmatic permit thus far. We anticipate a greater volume 
of applications for permits for long-term activities in the future, 
although we expect the number to increase gradually for a period of 
years and perhaps eventually reach an average of 30 or fewer per year. 
Utility-scale wind energy facilities and electric transmission 
companies are likely to be the most frequent long-term permit 
applicants, because of the known risk to eagles from collisions with 
wind turbines and electric power lines. Although smaller wind energy 
facilities could seek permits, we anticipate that most of the 
applications for wind energy

[[Page 27968]]

facilities will be for those that are commercial or utility scale. 
Although businesses in other business sectors, such as railroads, 
timber companies, and pipeline companies could also apply for permits, 
we anticipate the number of permit applicants in such sectors to be 
very small, on the order of one or two per year for each such sector. 
Thus, we anticipate that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.
    Under these proposed regulations, an applicant for a long-term 
permit would pay a $15,000 Administration Fee (an increase from the 
current fee of $2,600) every 5 years to cover the cost of the 5-year 
permit evaluations. The initial permit application fee of $36,000 for a 
long-term permit will remain the same. We do not believe the increased 
Administration Fee would impose a significant economic impact on these 
small entities.
    A commercial applicant for an incidental take permit of a duration 
less than 5 years would pay a $2,500 permit application processing fee, 
an increase from the current fee of $1,000 for programmatic permits and 
$500 for standard permits. The amendment fee for those permits would 
increase from $150 to $500. A commercial applicant for a nest take 
permit for a single nest would pay a $2,500 permit application 
processing fee, an increase from the current fee of $500 for standard 
permits. The amendment fee for those permits would also increase from 
$150 to $500. An applicant for a nest take permit for multiple nests 
would pay a $5,000 permit application processing fee, an increase from 
the current fee of $1,000 for programmatic permits. None of these fee 
increases are significant for commercial entities and all are necessary 
to recoup as much of the Service's costs in providing these services to 
these entities. The amendment fee for those permits would remain the 
same as the current programmatic nest take amendment fee ($500).
    Based on trends in the numbers of permit applications under the 
current regulations, we project there would be fewer than 100 small 
entities subject to the proposed fee increases annually, including 
renewal and amendments, which will not result in a significant impact 
on a substantial number of small entities. We request comments and 
information from industry and any other interested parties regarding 
probable economic impacts of this proposal.
    Additional practicable mitigation measures that may be required 
under the terms and conditions of permits issued with a term of longer 
than 5 years could result in some additional costs to the permittee, 
but those costs should be offset by the reduction in uncertainty for 
the permittee achieved by securing a 30-year permit rather than a 5-
year permit. Consequently, we certify that because this proposed rule 
would not have a significant economic effect on a substantial number of 
small entities, an initial regulatory flexibility analysis is not 
required.
    We are also proposing minor revisions to the eagle nest take permit 
regulations at 50 CFR 22.27, but none of the proposed changes are 
expected to have a significant economic effect on a substantial number 
of small entities.
    This proposed rule is not a major rule under SBREFA (5 U.S.C. 
804(2)) because:
    a. This proposed rule would not have an annual effect on the 
economy of $100 million or more.
    b. This proposed rule would not cause a major increase in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions.
    c. This proposed rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This proposed rule would not ``significantly or uniquely'' 
affect small governments. A small government agency plan is not 
required. The proposed regulations changes would not affect small 
government activities in any significant way.
    b. This proposed rule would not produce a Federal mandate of $100 
million or greater in any year. It is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with E.O. 12630, the rule would not have significant 
takings implications. This proposed rule does not contain any 
provisions that could constitute taking of private property. Therefore, 
a takings implication assessment is not required.

Federalism

    This proposed rule would not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under E.O. 13132. It 
would not interfere with the States' abilities to manage themselves or 
their funds. No significant economic impacts are expected to result 
from the proposed regulations change.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the proposed rule would not unduly burden the judicial 
system and meets the requirements of sections 3(a) and 3(b)(2) of the 
Order.

Paperwork Reduction Act of 1995 (PRA)

    This proposed rule contains a collection of information that we 
have submitted to the Office of Management and Budget (OMB) for review 
and approval under the PRA (44 U.S.C. 3501 et seq.). After publication 
of the ``Duration Rule'' in 2013, we included the burden associated 
with eagle permits in our renewal of OMB Control No. 1018-0022. OMB has 
reviewed and approved the information collection requirements for 
applications, annual reports, and nonhour cost burden associated with 
eagle permits and assigned OMB Control Number 1018-0022, which expires 
May 31, 2017. The approval includes long-term (more than 5 years) eagle 
take permits.
    This proposed rule does not revise the number of responses or total 
annual burden hours associated with eagle permits. However, we believe 
the approved estimates for the number of annual responses are high. We 
will adjust our estimates when we renew OMB Control No. 1018-0022.
    This proposed rule would:
    (1) Establish an administration fee of $15,000 that each permittee 
will pay every 5 years to cover the cost of the 5-year permit 
evaluations. We will not collect this fee until the permittee has had a 
permit for at least 5 years. We expect that we will not impose this fee 
until at least 2022.
    (2) Change the application fees associated with some permits.
    (3) Require annual reports. This requirement is approved under OMB 
Control Number 1018-0022. There are no fees associated with annual 
reports.
    (4) Establish a new reporting requirement and a new administration 
fee for permits of over 5 years.
    We are seeking OMB approval for changes in burden and nonhour cost 
burden associated with the proposed rule. We are requesting that OMB 
assign a new control number for the revised burden. When we publish the 
final rule, we will incorporate the new nonhour cost burden into OMB 
Control Number 1018-0022 and discontinue the new number. An agency may 
not conduct or sponsor and you are not required to respond to a 
collection of information

[[Page 27969]]

unless it displays a currently valid OMB control number.
    Title: Eagle Take Permits and Fees, 50 CFR 22.
    OMB Control Number: 1018-XXXX. This is a new collection.
    Service Form Number(s): 3-200-71, 3-200-72.
    Type of Request: New collection.
    Description of Respondents: Individuals and businesses. We expect 
that the majority of applicants seeking long-term permits will be in 
the energy production and electrical distribution business.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.

                                                  Table 1--Proposed Information Collection Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Difference
                                       Existing approval (1018-                                           Total approved  Total proposed   between 1018-
        Activity/ requirement                    0022)             Current fee         Proposed fee       nonhour burden  nonhour burden     0022 and
                                                                                                               cost            cost          proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              CHANGE IN NONHOUR COST BURDEN
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-200-71--application, Eagle           No. of responses and                $500  $500--Homeowner........         $72,500         $12,500       +$240,000
 Incidental Take--(not programmatic     annual burden hours                 500  $2,500--Commercial.....                         300,000
 or long-term) \1\.                     approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
3-200-72--application, Eagle Nest      No. of responses and                 500  $500--Homeowner........          15,000          55,000         +40,000
 Take--single nest (formerly            annual burden hours                      $2,500--Commercial.....
 ``standard'') \2\.                     approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
3-200-72--application, Eagle Nest      No. of responses and                   0  $500--Homeowner........               0          20,500         +20,500
 Take--multiple nests (formerly         annual burden hours                      $2,500--Commercial.....
 ``programmatic'') \3\.                 approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
3-200-71 Eagle Incidental Take         No. of responses and                 150  $150--Homeowner........       \5\ 3,000           9,300           6,300
 Amendment--less than 5 years           annual burden hours                      $500--Commercial.......
 (formerly ``standard'' \4\.            approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
3-200-72 Eagle Nest Take Amendment--   No. of responses and                 150  $150--Homeowner........         \6\ 750           2,150          +1,400
 ``Single nest'' (formerly              annual burden hours                      $500--Commercial.......
 ``standard'') \4\.                     approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
3-200-71 Amendment--Eagle Incidental   No. of responses and               1,000  No Fee \7\.............           2,000  ..............          -2,000
 Take Programmatic.                     annual burden hours
                                        approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          NO CHANGE OR FEES--BURDEN INCLUDED IN EXISTING APPROVAL OF 1018-0022
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   22.26(c)(3)--Annual Report \8\  No. of responses and      ..............  .......................  ..............  ..............  ..............
                                        annual burden hours
                                        approved under OMB
                                        Control No. 1018-0022.
                                        This proposed rule
                                        revises fees and
                                        nonhour costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 27970]]


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Estimated       Estimated                                                                      Difference
                                             number of       number of                                    Total approved  Total proposed   between 1018-
          Activity/requirement                annual       annual burden    Current fee    Proposed fee   nonhour burden  nonhour burden     0022 and
                                             responses         hours                                           cost            cost          proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   22.26(c)(7)(ii)--Permit reviews.                4              32               0         $15,000               0         $60,000        +$60,000
 At no more than 5 years from the date a
 permit that exceeds 5 years is issued,
 and every 5 years thereafter, the
 permittee compiles and submits to the
 Service, eagle fatality data or other
 pertinent information that is site-
 specific for the project. \9\..........
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................               4              32  ..............  ..............          93,250         459,450         366,200
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approved under 1018-0022--145 annual responses (25 from individuals/households (homeowners) and 120 from the private sector (commercial) totaling
  2,320 annual burden hours) (400 burden hours for individuals and 1,920 annual burden hours for private sector); $500 permit fee for both individuals
  and private sector for a total nonhour burden cost of $72,500. This proposed rule changes the application fees: Homeowner fee would remain $500;
  private sector fee (commercial) would increase to $2,500. Total for 25 homeowners--$12,500; Total for 125 commercial applicants--$300,000).
\2\ Approved under 1018-0022--30 responses (10 from Individuals/homeowners and 20 from private sector (commercial) totaling 480 burden hours (160 hours
  (individuals) and 320 hours (private sector). Homeowner fee would remain $500; private sector fee (commercial) would increase to $2,500. Total for 10
  homeowners--$5,000.; Total for 20 commercial applicants--$50.000).
\3\ Approved under 1018-0022--9 responses (1 from Individuals/homeowners and 8 from private sector (commercial) totaling 360 burden hours (40 hrs
  (individuals) and 320 hrs (private sector). The approved non-hour burden cost is $0; however, that is an error. The permit application processing fee
  for programmatic nest take permits under the current regulations is $1,000, so the total current burden cost should be $9,000 (9 responses). Under the
  proposed rule, the homeowner fee would increase to $500; private sector fee (commercial) would increase to $2,500. Total for 1 homeowner--$500; total
  for 8 commercial--$20,000.
\4\ The amendments for standard non-purposeful eagle take permits and standard eagle nest take permits are combined in the approved collection for a
  total of 25. Here they are split into 20 eagle incidental take permit amendments and 5 eagle nest take permit amendments.
\5\ Two Homeowner, Eighteen Commercial.
\6\ One Homeowner; Four Commercial.
\7\ The amendment fee for long-term programmatic permits is approved under 1018-0022. Under this proposed rule, it is being removed because the costs
  associated with it would be included under the proposed Administration Fee.
\8\ Approved under 1018-0022 (3-202-15)--540 responses (20 from individuals/households and 520 from private sector) totaling 16,200 annual burden hours;
  nonhour cost burden $0. There are no fees for annual reports.
\9\ This is a new reporting requirement as well as a new Administration Fee. We will not receive any reports or assess the Administration Fee until
  after a permittee has had a permit for 5 years (earliest probably 2022). We estimate that we will receive 19 responses every 5 years, annualized over
  the 3-year period of OMB approval results in 4 responses annually. We estimate that each response will take 8 hours, for a total of 32 annual burden
  hours. We will assess a $15,000 administration fee for each permittee for a total of $60,000. Note: this burden reflects what will be imposed in 5
  years. Each 5 years thereafter, the burden and nonhour costs will increase because of the number of permittees holding 5-year or longer term permits.

    Estimated Total Nonhour Burden Cost: $459,450 for administration 
fees and application fees associated with changes in this proposed 
rule. This does not include the nonhour cost burden for eagle/eagle 
nest take permits approved under OMB Control No. 1018-0022. States, 
local governments, and tribal governments are exempt from paying these 
fees.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary, 
including whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
respondents.
    If you wish to comment on the information collection requirements 
of this proposed rule, send your comments directly to OMB (see detailed 
instructions under the heading Comments on the Information Collection 
Aspects of this Proposal in the ADDRESSES section). Please identify 
your comments with 1018-AY30. Provide a copy of your comments to the 
Service Information Collection Clearance Officer (see detailed 
instructions under the heading Comments on the Information Collection 
Aspects of this Proposal in the ADDRESSES section).

National Environmental Policy Act

    We have prepared a draft programmatic environmental impact 
statement (DPEIS) under the requirements of the NEPA of 1969 (42 U.S.C. 
4321 et seq.). The DPEIS analyzes the effects of this proposed rule and 
our proposed associated management objectives, as well as alternatives 
to these proposed rule revisions and proposed management objectives. 
The DPEIS is available online at www.regulations.gov by clicking on the 
link entitled ``Non-Eagle Management and Regulations DPEIS'' and is 
also available on the Service's Web site at: https://www.fws.gov/birds/management/managed-species/eagle-management.php.
    In addition, the Environmental Protection Agency (EPA) is 
publishing a notice of availability in the Federal

[[Page 27971]]

Register announcing the DPEIS, as required under section 309 of the 
Clean Air Act (42 U.S.C. 7401 et seq.). All EISs are filed with EPA, 
which publishes a notice of availability on Fridays in the Federal 
Register. For more information, see https://www.epa.gov/compliance/nepa/eisdata.html. The publication date of EPA's notice of availability is 
the official start of the public comment period for the draft EIS. 
Under the Clean Air Act, EPA also must subsequently announce the final 
PEIS via the Federal Register.
    The EPA is charged under section 309 of the Clean Air Act to review 
all Federal agencies' environmental impact statements (EISs) and to 
comment on the adequacy and the acceptability of the environmental 
impacts of proposed actions in the EISs. EPA also serves as the 
repository (EIS database) for EISs prepared by Federal agencies. The 
Environmental Impact Statement (EIS) Database provides information 
about EISs prepared by Federal agencies, as well as EPA's comments 
concerning the EISs. You may search for EPA comments on EISs, along 
with EISs themselves, at https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

Endangered and Threatened Species

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires 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'' (16 U.S.C. 1536(a)(2)). Service policies 
require assessment of impacts to certain rare, candidate, declining, 
and sensitive species. Before issuance of the final regulations and 
final DPEIS, the Service will comply with provisions of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the 
Act), to ensure that the rulemaking is not likely to jeopardize the 
continued existence of any species designated as endangered or 
threatened or modify or destroy its critical habitat and is consistent 
with conservation programs for those species. Consultations under 
section 7 of the Act may cause us to change proposals in this and 
future supplemental proposed rulemaking documents.

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), E.O. 13175, and 512 DM 2, we have 
evaluated potential effects on federally recognized Indian tribes and 
have determined that this proposed rule would not interfere with 
tribes' abilities to manage themselves, their funds, or tribal lands. 
In September of 2013, we sent a letter to all federally recognized 
tribes inviting them to consult about possible changes to the eagle 
take permit regulations. The letter notified Tribes of the Service's 
intent to amend the regulations and sought feedback about their 
interest in consultation on the amendment. After sending these letters 
and receiving responses from several Tribes, FWS conducted webinars, 
group meetings, and meetings with individual Tribes. The FWS will 
continue to respond to all Tribal requests for consultation on this 
effort.
    Several tribes that value eagles as part of their cultural heritage 
objected to the 2013 rule that extended maximum permit duration for 
programmatic permits based on a concern that the regulations would not 
adequately protect eagles. Those tribes may perceive further negative 
effects from similar provisions proposed in this rulemaking. However, 
eagles would be sufficiently protected under this proposal because only 
those applicants who commit to adaptive management measures to ensure 
the preservation of eagles will receive permits with terms longer than 
5 years and those permits will be reviewed at 5-year intervals and 
amended if necessary.

Energy Supply, Distribution, or Use (Executive Order 13211)

    E.O. 13211 addresses regulations that significantly affect energy 
supply, distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
rule, if finalized as proposed, would likely be used by numerous energy 
generation projects seeking compliance with the Eagle Act. However, the 
rule is not a significant regulatory action under E.O. 13211, and no 
Statement of Energy Effects is required.

Material Incorporated by Reference

    These proposed regulations incorporate by reference two appendices 
of the Service's Eagle Conservation Plan Guidance, Module 1--Land-based 
Wind Energy (ECPG) (USFWS, 2013). The guidance went through two periods 
of public notice and comment during its development and, separately, 
was twice peer-reviewed by independent third-parties. The ECPG is 
available in the Service's Web site at: https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf. 
Proposed provisions at Sec.  22.26(d)(3)(i) would incorporate by 
reference are ECPG Appendix C: Stage 2--Site-Specific Surveys and 
Assessment and ECPG Appendix D: Stage 3--Predicting Eagle Fatalities.

Literature Cited

Brown, J. L., M. W. Collopy, E. J. Gott, P. W. Juergens, A. B. 
Montoya, and W. G. Hunt. 2006. Wild-reared aplomado falcons survive 
and recruit at higher rates than hacked falcons in a common 
environment. Biological Conservation 131:453-458.
Kochert, M.N., Steenhof, K., 2012. Frequency of nest use by golden 
eagles in southwestern Idaho. J. Raptor Res. 46, 239-247. https://dx.doi.org/10.3356/JRR-12-00001.1.
McIntyre, C. L., D. C. Douglas, and M. W. Collopy. 2008. Movements 
of golden eagles (Aquila chrysaetos) from interior Alaska during 
their first year of independence. The Auk 125:214-224.
McIntyre, C. 2012. Quantifying sources of mortality and winter 
ranges of golden eagles from interior Alaska using banding and 
satellite tracking. Journal of Raptor Research 46:129-134.
Mojica, E. K., J. M. Meyers, B. A. Millsap, and K. L. Haley. 2008. 
Migration of Florida sub-adult bald eagles. The Wilson Journal of 
Ornithology 120:304-310.
U.S. Fish and Wildlife Service. 2007. National Bald Eagle Management 
Guidelines. Division of Migratory Bird Management. https://www.fws.gov/birds/management/managed-species/eagle-management.php.
U.S. Fish and Wildlife Service. 2009. Final Environmental 
Assessment: Proposal to Permit Take as Provided Under the Bald and 
Golden Eagle Protection Act. Division of Migratory Bird Management. 
https://www.fws.gov/migratorybirds/pdf/management/FEAEagleTakePermit.pdf.
U.S. Fish and Wildlife Service. 2013. Eagle conservation plan 
guidance. Module 1--land-based wind energy. Version 2. Division of 
Migratory Bird Management. https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf.
U.S. Fish and Wildlife Service. 2016. Bald and Golden Eagles: 
Status, trends, and estimation of sustainable take rates in the 
United States. Division of Migratory Bird Management, Washington DC, 
USA.

List of Subjects

50 CFR Part 13

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

[[Page 27972]]

50 CFR Part 22

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

Proposed Regulation Promulgation

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

PART 13--GENERAL PERMIT PROCEDURES

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

    Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 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. In Sec.  13.11, revise the entries for ``Bald and Golden Eagle 
Protection Act'' in the table in paragraph (d)(4) to read as follows:


Sec.  13.11  Application procedures.

* * * * *
    (d) * * *
    (4) * * *

----------------------------------------------------------------------------------------------------------------
             Type of permit                     CFR citation            Permit application fee     Amendment fee
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                      Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
Eagle Scientific Collecting............  50 CFR part 22............  100........................              50
Eagle Exhibition.......................  50 CFR part 22............  75.........................
Eagle Falconry.........................  50 CFR part 22............  100........................
Eagle--Native American Religion........  50 CFR part 22............  No fee.....................
Eagle Take permits--Depredation and      50 CFR part 22............  100........................
 Protection of Health and Safety.
Golden Eagle Nest Take.................  50 CFR part 22............  100........................              50
Eagle Transport--Scientific or           50 CFR part 22............  75.........................
 Exhibition.
Eagle Transport--Native American         50 CFR part 22............  No fee.....................
 Religious Purposes.
Eagle Incidental Take--Up to 5 years...  50 CFR part 22............  2,500......................             500
Eagle Incidental Take--Homeowner.......  50 CFR part 22............  500........................             150
Eagle Incidental Take--5-30 years......  50 CFR part 22............  36,000.....................
Eagle Incidental Take--Transfer of a     50 CFR part 22............  1,000......................
 permit.
Eagle Nest Take--Single nest...........  50 CFR part 22............  2,500......................             500
Eagle Nest Take--Multiple nests........  50 CFR part 22............  5,000......................             500
Eagle Nest Take--Homeowner.............  50 CFR part 22............  500........................             150
Eagle Take--Exempted under ESA.........  50 CFR part 22............  No fee.....................
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 22--EAGLE PERMITS

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

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

0
4. Amend Sec.  22.3 by:
0
a. Removing the definition of ``Advanced conservation practices'';
0
b. Adding a definition for ``Alternate nest'';
0
c. Removing the definition of ``Area nesting population'';
0
d. Adding definitions for ``Compatible with the preservation of the 
bald eagle or the golden eagle'' and ``Eagle management unit'';
0
d. Revising the definition of ``Eagle nest'';
0
e. Removing the definition of ``Inactive nest'';
0
f. Adding definitions for ``In-use nest'' and ``Local area 
population'';
0
g. Removing the definition of ``Maximum degree achievable'';
0
h. Adding a definition for ``Nesting territory'';
0
i. Revising the definition of ``Practicable''; and
0
j. Removing the definitions of ``Programmatic permit'', ``Programmatic 
take'', and ``Territory''.
    The additions and revisions read as follows:


Sec.  22.3  What definitions do you need to know?

* * * * *
    Alternate nest means one of potentially several nests within a 
nesting territory that is not a used nest at the current time. When 
there is no used nest, all nests in the territory are alternate nests.
* * * * *
    Compatible with the preservation of the bald eagle or the golden 
eagle means consistent with the goals of maintaining stable or 
increasing breeding populations in all eagle management units and 
persistence of local populations throughout the geographic range of 
both species.
* * * * *
    Eagle management unit (EMU) means the geographic scale over which 
permitted take is regulated to meet the management objective.
    Eagle nest means any assemblage of materials built, maintained, or 
used by bald eagles or golden eagles for the purpose of reproduction.
* * * * *
    In-use nest means a bald or golden eagle nest characterized by the 
presence of one or more eggs, dependent young, or adult eagles on the 
nest in the past 10 days during the breeding season.
* * * * *
    Local area population (LAP) means the bald or golden eagle 
population within the area of a human activity or project bounded by 
the natal dispersal distance for the respective species. The LAP is 
estimated using the average eagle density of the EMU or EMUs where the 
activity or project is located.
* * * * *
    Nesting territory means the area that contains one or more eagle 
nests within the home range of a mated pair of eagles, regardless of 
whether such nests were built by the current resident pair.
* * * * *
    Practicable means available and capable of being done after taking 
into consideration existing technology, logistics, and cost in light of 
a mitigation measure's beneficial value to

[[Page 27973]]

eagles and the activity's overall purpose, scope, and scale.
* * * * *


Sec.  22.4  [Amended]

0
5. Amend Sec.  22.4(a) by removing ``and 1018-0136'' in the first 
sentence.
0
6. Amend Sec.  22.11 by revising paragraph (c) to read as follows:


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

* * * * *
    (c) A permit under this part only authorizes take, possession, and/
or transport under the Bald and Golden Eagle Protection Act and does 
not provide authorization under the Migratory Bird Treaty Act or the 
Endangered Species Act for the take, possession, and/or transport of 
migratory birds or endangered or threatened species other than bald or 
golden eagles.
* * * * *
0
7. Amend Sec.  22.25 by:
0
a. Revising the first sentence of the introductory text;
0
b. Removing the semicolons at the ends of paragraphs (a)(1) and (2) and 
adding periods in their place;
0
c. Revising paragraph (a)(4);
0
d. Removing the semicolon at the end of paragraph (a)(5) and adding a 
period in its place;
0
e. Removing paragraph (a)(6) and redesignating paragraphs (a)(7) 
through (9) as paragraphs (a)(6) through (8);
0
f. Removing the semicolon at the end of newly redesignated paragraph 
(a)(6) and adding a period in its place and removing ``; and'' at the 
end of newly redesignated paragraph (a)(7) and adding a period in its 
place;
0
g. Revising paragraphs (b)(1) and (4);
0
h. Removing paragraphs (c)(3) and (6) and redesignating paragraphs 
(c)(4) and (5) as paragraphs (c)(3) and (4); and
0
i. Revising newly designated paragraphs (c)(3) and (4).
    The revisions read as follows:


Sec.  22.25  What are the requirements concerning permits to take 
golden eagle nests?

    The Director may, upon receipt of an application and in accordance 
with the issuance criteria of this section, issue a permit authorizing 
any person to take alternate golden eagle nests during a resource 
development or recovery operation if the taking is compatible with the 
preservation of golden eagles. * * *
    (a) * * *
    (4) Nest and territory occupancy data. (i) For each golden eagle 
nest proposed to be taken, the applicant must identify on an 
appropriately scaled map or plat the exact location of each golden 
eagle nest in the nesting territory. The map or plat must contain 
enough details so that each golden eagle nest can be readily located by 
the Service.
    (ii) A description of the monitoring that was done to verify that 
eagles are not attending the nest for breeding purposes, and any 
additional available documentation used in identifying which nests 
within the territory were in-use nests in current and past breeding 
seasons.
* * * * *
    (b) * * *
    (1) Only alternate golden eagle nests may be taken;
* * * * *
    (4) The permittee must comply with any mitigation and monitoring 
measures determined by the Director to be practicable and compatible 
with the resource development or recovery operation; and
* * * * *
    (c) * * *
    (3) Whether suitable golden eagle nesting and foraging habitat 
unaffected by the resource development or recovery operation is 
available to accommodate any golden eagles displaced by the resource 
development or recovery operation; and
    (4) Whether practicable mitigation measures compatible with the 
resource development or recovery operation are available to encourage 
golden eagles to reoccupy the resource development or recovery site. 
Mitigation measures may include, but are not limited to, reclaiming 
disturbed land to enhance golden eagle nesting and foraging habitat, 
relocating in suitable habitat any golden eagle nest taken, or 
establishing one or more nest sites.
* * * * *
0
8. Amend Sec.  22.26 by:
0
a. Revising paragraphs (a) and (c)(1) through (3);
0
b. Redesignating paragraphs (c)(7) through (10) as (c)(8) through (11) 
and adding new paragraph (c)(7);
0
c. Revising paragraph (d)(2) and adding paragraph (d)(3);
0
d. Revising paragraph (e)(1);
0
e. Redesignating paragraphs (e)(3), (4), and (5) as paragraphs (e)(5), 
(7), and (9), adding new paragraphs (e)(3), (4), (6), and (8);
0
f. Revising newly redesignated paragraphs (e)(5) and (e)(7)(i) through 
(iv);
0
g. Removing newly redesignated paragraph (e)(7)(v);
0
h. Revising paragraphs (f)(2) through (6);
0
i. Adding paragraphs (f)(7) and (8); and
0
j. Revising paragraph (h).
    The revisions and additions read as follows:


Sec.  22.26  Permits for eagle take that is associated with, but not 
the purpose of, an activity.

    (a) Purpose and scope. This permit authorizes take of bald eagles 
and golden eagles where the take is compatible with the preservation of 
the bald eagle and the golden eagle; is necessary to protect an 
interest in a particular locality; is associated with, but not the 
purpose of, the activity; and cannot practicably be avoided.
* * * * *
    (c) * * *
    (1) You must comply with all avoidance, minimization, or other 
mitigation measures specified in the terms of your permit to mitigate 
for the detrimental effects on eagles, including indirect effects, of 
the permitted take.
    (i) Compensatory mitigation scaled to project impacts will be 
required for any permit authorizing take that would exceed the 
authorized take limits. Compensatory mitigation for this purpose must 
ensure the preservation of the affected eagle species by reducing 
another ongoing form of mortality by an amount equal to or greater than 
the unavoidable mortality, or increasing carrying capacity to allow the 
eagle population to grow by an equal or greater amount.
    (ii) Compensatory mitigation may also be required in the following 
circumstances:
    (A) When cumulative authorized take, including the proposed take, 
would exceed 5 percent of the local area population; or
    (B) When available data indicate that cumulative unauthorized 
mortality would exceed 10 percent of the local area population.
    (iii) All required compensatory mitigation must:
    (A) Be determined based on application of all practicable avoidance 
and minimization measures;
    (B) Be sited within the same eagle management unit where the 
permitted take will occur unless the Service has reliable data showing 
that the population affected by the take includes individuals that are 
reasonably likely to use another EMU during part of their seasonal 
migration;
    (C) Use the best available science in formulating and monitoring 
the long-term effectiveness of mitigation measures;
    (D) Be additional to any existing or foreseeably expected 
conservation and mitigation efforts planned for the future;
    (E) Be durable and, at a minimum, maintain its intended purpose for 
as

[[Page 27974]]

long as impacts of the authorized take persist; and
    (F) Account for uncertainty and risk of failure with regard to the 
amount of compensatory mitigation required.
    (iv) Compensatory mitigation may include conservation banking, in-
lieu fee programs, and other third-party mitigation projects or 
arrangements. Permittee-responsible mitigation may be approved provided 
the permittee submits verifiable documentation sufficient to 
demonstrate that the standards set forth in paragraph (c)(1)(iii) of 
this section have been met and the alternative means of compensatory 
mitigation will offset the permitted take to the degree that is 
compatible with the preservation of eagles.
    (2) Monitoring. (i) You may be required to monitor eagle use of 
important eagle-use areas where eagles are likely to be affected by 
your activities for up to 3 years after completion of the activity or 
as set forth in a separate management plan, as specified on your 
permit. For ongoing activities and enduring site features that will 
likely continue to result in take, periodic monitoring may be required 
for as long as the data are needed to assess impacts to eagles.
    (ii) The frequency and duration of required monitoring will depend 
on the form and magnitude of the anticipated take and the objectives of 
associated avoidance, minimization, or other mitigation measures, not 
to exceed what is reasonable to meet the primary purpose of the 
monitoring, which is to provide data needed by the Service regarding 
the impacts of the activity on eagles for purposes of adaptive 
management. You must coordinate with the Service to develop project-
specific monitoring protocols. If the Service has officially issued or 
endorsed, through rulemaking procedures, monitoring protocols for the 
activity that will take eagles, you must follow them, unless the 
Service waives this requirement.
    (3) You must submit an annual report summarizing the information 
you obtained through monitoring to the Service every year that your 
permit is valid and for up to 3 years after completion of the activity 
or termination of the permit, as specified in your permit. The Service 
will make eagle mortality information from annual reports available to 
the public.
* * * * *
    (7) Additional conditions for permits with durations longer than 5 
years--(i) Adaptive management. The permit may specify conditions under 
which modifications to avoidance, minimization, or compensatory 
mitigation measures or monitoring protocols may be required.
    (ii) Permit reviews. At no more than 5 years from the date a permit 
that exceeds 5 years is issued, and every 5 years thereafter, the 
permittee will compile, and submit to the Service, eagle fatality data 
or other pertinent information that is site-specific for the project, 
as required by the permit. The Service will review the information to 
determine:
    (A) Whether adaptive management conditions specified in the permit 
pursuant to paragraph (c)(7)(i) of this section have been reached that 
would indicate that modifications to avoidance, minimization, or other 
mitigation measures or monitoring protocols as described in the permit 
should be implemented; and
    (B) Whether, after negotiation with the permittee, to make 
additional changes to a permit, including any of the following:
    (1) Update fatality predictions and authorized take levels for the 
facility.
    (2) Add, remove, or adjust avoidance and minimization measures. 
Such measures may be required if:
    (i) Authorized take levels are, or likely will be, exceeded;
    (ii) Additional or modified, appropriate and practicable avoidance 
and/or minimization measures shown to be effective in reducing risk to 
eagles become available and are feasible to implement at reasonable 
cost to the permittee; or
    (iii) Avoidance and/or minimization measures in place are shown to 
be ineffective or unnecessary.
    (3) Update monitoring requirements.
    (4) Suspend or revoke the permit in accordance with part 13 of this 
subchapter B.
    (C) In consultation with the permittee, compensatory mitigation for 
future years for the project, taking into account the observed levels 
of take based on approved protocols for monitoring, searching, and 
estimating total take, and also accounting for changes in operations or 
permit conditions pursuant to paragraphs (c)(7)(ii)(A) and (B) of this 
section.
    (iii) Fees. For permits with terms longer than 5 years, an 
Administration Fee of $15,000 will be assessed every 5 years for permit 
review.
* * * * *
    (d) * * *
    (2) Your application must consist of a completed application Form 
3-200-71 and all required attachments. Send applications to the 
Regional Director of the Region in which the take would occur--
Attention: Migratory Bird Permit Office. You can find the current 
addresses for the Regional Directors in Sec.  2.2 of subchapter A of 
this chapter.
    (3) Applicants must coordinate with the Service to develop project-
specific monitoring and survey protocols, take probability models, and 
any other applicable data quality standards, and include in your 
application all the data thereby obtained.
    (i) If the Service has officially issued or endorsed, through 
rulemaking procedures, survey, modeling, or other data quality 
standards for the activity that will take eagles, you must follow them 
and include in your application all the data thereby obtained, unless 
the Service waives this requirement for your application. Applicants 
seeking an eagle take permit for a wind-energy generation facility must 
follow the data quality standards in Appendices C, and D of the Eagle 
Conservation Plan Guidance, Module 1--Land-based Wind Energy, available 
at https://www.fws.gov/migratorybirds/pdf/management/eagleconservationplanguidance.pdf, which are incorporated by reference 
into this paragraph, and include in your application all the data 
thereby obtained, unless the Service waives this requirement for your 
application.
    (ii) Application of the Service-endorsed data quality standards of 
paragraph (d)(3)(i) of this section may not be needed if:
    (A) The Service has data of sufficient quality to predict the 
likely risk to eagles;
    (B) Expediting the permit process will benefit eagles; or
    (C) The Service determines the risk to eagles from the activity is 
low enough relative to the status of the eagle population based on:
    (1) Physiographic and biological factors of the project site; or
    (2) The project design (i.e., use of proven technology, 
micrositing, etc.).
    (e) * * *
    (1) Whether take is likely to occur based on the magnitude and 
nature of the impacts of the activity.
* * * * *
    (3) Whether the cumulative authorized take, including the proposed 
take, would exceed 5 percent of the local area population.
    (4) Any available data indicating that unauthorized take may exceed 
10 percent of the local area population.
    (5) Whether the applicant has proposed all avoidance and 
minimization measures to reduce the take to the maximum degree 
practicable relative to the magnitude of the impacts to eagles.

[[Page 27975]]

    (6) Whether the applicant has proposed all appropriate and 
practicable compensatory mitigation measures to compensate for 
remaining unavoidable impacts after all appropriate and practicable 
avoidance and minimization measures have been applied.
    (7) * * *
    (i) Safety emergencies;
    (ii) Increased need for traditionally practiced Native American 
tribal religious use that requires eagles be taken from the wild;
    (iii) Non-emergency activities necessary to ensure public health 
and safety; and
    (iv) Other interests.
    (8) For projects that are already operational and have taken eagles 
without a permit, whether such past unpermitted eagle take has been 
resolved or is in the process of resolution with the Office of Law 
Enforcement through settlement or other appropriate means.
    (f) * * *
    (2) The take will not result in cumulative authorized take that 
exceeds 5 percent of the local area population, or the Service can 
determine that permitting take over 5 percent of that local area 
population is compatible with the preservation of the bald eagle or the 
golden eagle.
    (3) The taking is necessary to protect a legitimate interest in a 
particular locality.
    (4) The taking is associated with, but not the purpose of, the 
activity.
    (5) The applicant has applied all appropriate and practicable 
avoidance and minimization measures to reduce impacts to eagles.
    (6) The applicant has applied all appropriate and practicable 
compensatory mitigation measures, when required, pursuant to paragraph 
(c) of this section, to compensate for remaining unavoidable impacts 
after all appropriate and practicable avoidance and minimization 
measures have been applied.
    (7) Issuance of the permit will not preclude issuance of another 
permit necessary to protect an interest of higher priority as set forth 
in paragraph (e)(7) of this section.
    (8) Issuance of the permit will not interfere with an ongoing civil 
or criminal action concerning unpermitted past eagle take at the 
project.
* * * * *
    (h) Permit duration. The duration of each permit issued under this 
section will be designated on its face and will be based on the 
duration of the proposed activities, the period of time for which take 
will occur, the level of impacts to eagles, and the nature and extent 
of mitigation measures incorporated into the terms and conditions of 
the permit. A permit for incidental take will not exceed 30 years.
* * * * *
0
9. Amend Sec.  22.27 by:
0
a. Revising paragraphs (a)(1)(i) through (iv), (a)(3), and (b)(1), (2), 
and (7);
0
b. Redesignating paragraphs (b)(8) through (10) as paragraphs (b)(9) 
through (11) and adding a new paragraph (b)(8); and
0
c. Revising paragraphs (e)(1), (e)(2) introductory text, (e)(2)(ii) and 
(iii), and (e)(4) through (6).
    The revisions and addition read as follows:


Sec.  22.27  Removal of eagle nests.

    (a) * * *
    (1) * * *
    (i) An in-use or alternate nest where necessary to alleviate an 
existing safety emergency, or to prevent a rapidly developing safety 
emergency that is otherwise likely to result in bodily harm to humans 
or eagles while the nest is still in use by eagles for breeding 
purposes;
    (ii) An alternate nest when the removal is necessary to ensure 
public health and safety;
    (iii) An alternate nest, or an in-use nest prior to egg-laying, 
that is built on a human-engineered structure and creates, or is likely 
to create, a functional hazard that renders the structure inoperable 
for its intended use; or
    (iv) An alternate nest, provided the take is necessary to protect 
an interest in a particular locality and the activity necessitating the 
take or the mitigation for the take will, with reasonable certainty, 
provide a net benefit benefit to eagles.
* * * * *
    (3) A permit may be issued under this section to cover multiple 
nest takes over a period of up to 5 years, provided the permittee 
complies with comprehensive measures developed in coordination with the 
Service to minimize the need to remove nests and specified as 
conditions of the permit.
* * * * *
    (b) * * *
    (1) The permit does not authorize take of in-use nests except:
    (i) For safety emergencies as provided under paragraph (a)(1)(i) of 
this section; or
    (ii) Prior to egg-laying if the in-use nest is built on a human-
engineered structure and meets the provisions set forth in paragraph 
(a)(1)(iii) of this section.
    (2) When an in-use nest must be removed under this permit, any take 
of nestlings or eggs must be conducted by a Service-approved, qualified 
agent. All nestlings and viable eggs must be immediately transported to 
foster/recipient nests or a rehabilitation facility permitted to care 
for eagles, as directed by the Service, unless the Service waives this 
requirement.
* * * * *
    (7) You must comply with all avoidance, minimization, or other 
mitigation measures specified in the terms of your permit to mitigate 
for the detrimental effects on eagles, including indirect effects, of 
the permitted take.
    (8) Compensatory mitigation scaled to project impacts will be 
required for any permit authorizing take that would exceed the 
authorized take limits. Compensatory mitigation may also be required in 
the following circumstances:
    (i) When cumulative authorized take, including the proposed take, 
would exceed 5 percent of the local area population;
    (ii) When available data indicates that cumulative unauthorized 
mortality would exceed 10 percent of the local area population;
    (iii) If otherwise necessary to maintain the persistence of local 
eagle populations throughout their geographic range; or
    (iv) If the permitted activity does not provide a net benefit to 
eagles, you must apply appropriate and practicable compensatory 
mitigation measures as specified in your permit to provide a net 
benefit to eagles scaled to the effects of the nest removal.
* * * * *
    (e) * * *
    (1) The direct and indirect effects of the take and required 
mitigation, together with the cumulative effects of other permitted 
take and additional factors affecting eagle populations, are compatible 
with the preservation of the bald eagle or the golden eagle.
    (2) For alternate nests:
* * * * *
    (ii) The nest is built on a human-engineered structure and creates, 
or is likely to create, a functional hazard that renders the structure 
inoperable for its intended use; or
    (iii) The take is necessary to protect a legitimate interest in a 
particular locality, and the activity necessitating the take or the 
mitigation for the take will, with reasonable certainty, provide a net 
benefit to eagles.
    (3) For in-use nests prior to egg-laying, the nest is built on a 
human-engineered structure and creates, or is likely to create, a 
functional hazard that

[[Page 27976]]

renders the structure inoperable for its intended use.
    (4) For in-use nests, the take is necessary to alleviate an 
existing safety emergency, or to prevent a rapidly developing safety 
emergency that is otherwise likely to result in bodily harm to humans 
or eagles while the nest is still in use by eagles for breeding 
purposes.
    (5) There is no practicable alternative to nest removal that would 
protect the interest to be served.
    (6) Issuing the permit will not preclude the Service from 
authorizing another take necessary to protect an interest of higher 
priority, according to the following prioritization order:
    (i) Safety emergencies;
    (ii) Increased need for traditionally practiced Native American 
tribal religious use that requires eagles be taken from the wild;
    (iii) Non-emergency activities necessary to ensure public health 
and safety;
    (iv) Resource development or recovery operations (under Sec.  
22.25, for golden eagle nests only); and
    (v) Other interests.
* * * * *

    Dated: May 2, 2016.
Michael Bean,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-10542 Filed 5-4-16; 4:15 pm]
 BILLING CODE 4333-15-P