Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests, 91494-91554 [2016-29908]

Download as PDF 91494 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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 Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are revising the regulations for eagle nonpurposeful take permits and eagle nest take permits. Revisions include changes to permit issuance criteria and duration, definitions, compensatory mitigation standards, criteria for eagle nest removal permits, permit application requirements, and fees. We intend the revisions to add clarity to the eagle permit regulations, improve their implementation, and increase compliance, while maintaining strong protection for eagles. DATES: Effective January 17, 2017. ADDRESSES: Document Availability: The Record of Decision, Final PEIS, and supplementary information used in the development of this rule, including the public comments received and the programmatic environmental impact statement, may be viewed online at http://www.fws.gov/birds/management/ managed-species/eaglemanagement.php and also at http:// www.regulations.gov at Docket No. FWS–R9–MB–2011–0094. FOR FURTHER INFORMATION CONTACT: Eliza Savage, 703–358–2329 or eliza_ savage@fws.gov. SUPPLEMENTARY INFORMATION: SUMMARY: asabaliauskas on DSK3SPTVN1PROD with RULES Executive Summary The U.S. Fish and Wildlife Service is finalizing revisions to permit regulations for nonpurposeful (incidental) take of eagles and take of eagle nests in part 22 of title 50 of the Code of Federal Regulations. The revisions are intended to create a permitting framework that we can implement more efficiently and thus encourage greater public compliance while ensuring protection of bald and golden eagles. Our goal is to enhance protection of eagles throughout their ranges through implementation of mitigation measures that avoid and minimize, and compensate for, adverse VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 impacts from otherwise lawful activities. The Service is modifying the definition of the Bald and Golden Eagle Protection Act’s ‘‘preservation standard,’’ which requires that permitted take be compatible with the preservation of eagles. We are also removing the distinction between standard and programmatic permits, codifying standardized mitigation requirements, and extending the maximum permit duration for eagle incidental take permits (50 CFR 22.26). The regulations also include a number of additional revisions to the 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 § 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 authorizes the Secretary of the Interior to issue regulations to permit the ‘‘taking’’ of eagles for various purposes, including the protection of ‘‘other interests in any particular locality’’ (16 U.S.C. 668a), provided the taking is compatible with the preservation of eagles. In 2009, the Service promulgated regulations at 50 CFR part 22 that established two new permit types for take of eagles and eagle nests (74 FR 46836; Sept. 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. In these revised regulations, we refer to nonpurposeful take as incidental take, which has the same meaning as conveyed in the 2009 regulations: Take that is associated with but not the purpose of an activity. The Eagle Act requires the Service to determine that any take of eagles the Service authorizes is ‘‘compatible with the preservation of the bald eagle or the golden eagle’’ (16 U.S.C. 668a). 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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 stable or increasing breeding populations’’ (74 FR 46836, see p. 46837). 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 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 environmental assessment (EA) or environmental impact statement (EIS) to accompany the rulemaking rather than apply a categorical exclusion under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321– 4347). The effect of the ruling was to return the maximum programmatic permit tenure to 5 years. The 2012 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 EA or EIS pursuant to NEPA (79 FR 35564; June 23, 2014). The Service then held five public scoping meetings between July 22 and August 7, 2014. We received a total of 536 comments during that public comment period. Upon removal of duplicates, there were a total of 517 unique comments. We reviewed the comments and used them to develop proposed regulations and a draft programmatic environmental impact statement (DPEIS), which we released on May 6, 2016, for a 60-day public comment period (81 FR 27934). The draft PEIS and proposed regulations are available on the Internet at: http:// eagleruleprocess.org/ and at http:// www.regulations.gov at Docket No. FWS–R9–MB–2011–0094. We received 780 comments on the proposed rule and DPEIS from federal agencies, states, E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations tribes, nongovernmental organizations, industry associations, individual companies, and members of the public. These comments were the basis for several changes, discussed below, that we made to the proposed action in this rule. In accordance with NEPA requirements (40 CFR 1506.6(b)), we announce the availability of the Record of Decision (ROD) for the Service’s final PEIS for the eagle rule revisions and management objectives. The ROD is the final step in the NEPA process for the eagle rule revision process, which includes revisions to the regulations governing permits for incidental take of eagles and take of eagle nests. The ROD describes the Service’s decision; identifies the other alternatives considered, including the environmentally preferable alternative; explains the Service’s plans for mitigation; and states what factors, including considerations of national policy, we considered in making the decision. The ROD and final PEIS are available at http://www.fws.gov/birds/ management/managed-species/eaglemanagement.php and also at http:// www.regulations.gov at Docket No. FWS–R9–MB–2011–0094. Bald eagle populations have continued to increase throughout the United States, which effectively increases 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 have not provided an optimal framework for authorizing incidental take under these circumstances, particularly for incidental take resulting from long-term, ongoing activities. Difficulties in establishing new permit regulations are to be expected and the Service contemplated that changes to the permit regulations would be necessary based on experience gained through implementing the new permit framework. One of these challenges has been a general perception that the 2009 permitting framework did not provide enough flexibility to issue eagle take permits in a timely manner. Indeed, only one programmatic permit has been issued to date. When projects go forward without permit authorization, VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 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 management approach established with the 2009 eagle permit regulations and final EA (FEA), permitted take of bald eagles has been 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 mortality or disturbance 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 compensatory 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 were 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 91495 might be declining towards a lower equilibrium. Additionally, the Service now has a much better understanding of the seasonal, annual, and age-related movement patterns of golden eagles. These data are incorporated into the updated management framework. Through 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 have been 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. Encouraging more proponents of activities that incidentally take eagles to apply for permits is a critically important means of reducing incidental take. The intent of these regulations is not to encourage construction and operation of projects that take eagles (an eagle incidental take permit only authorizes take of eagles; it is not a prerequisite or an authorization to construct and operate projects that will result in eagles being taken). Instead, we are strongly encouraging such projects to seek authorization for eagle take and thereby implement conservation measures that reduce incidental take and benefit eagles. Unpermitted activities have taken and will continue to take eagles with or without this permit program. In fact, the Service’s recent analysis of causes of death of golden eagles shows that, 56 years after enactment of the Eagle Act, unpermitted human-caused mortality is still the leading cause of death of golden eagles in the United States, and risks causing E:\FR\FM\16DER4.SGM 16DER4 91496 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES population declines for this species. Our goal is to reduce the number of unauthorized activities through enforcement where appropriate and by implementing an efficient regulatory framework that encourages proponents of activities that incidentally take eagles to seek and obtain legal authorization. The Service has successfully pursued enforcement actions against project proponents that incidentally take eagles and will continue to do so, but enforcement alone is an inefficient means to manage and conserve eagles nationwide and is constrained by our limited law enforcement resources. Therefore, our primary means of conserving and protecting eagles is to ensure that our incidental take permit regulations encourage more proponents to seek and obtain permits for activities that otherwise would continue to take eagles without implementing the conservation measures that are critical to eagle conservation nationally, regionally, and locally. Status of Eagle Populations The Service is updating its management objectives for eagles established by the 2009 eagle permit regulations and FEA. Management objectives direct strategic management and monitoring actions and ultimately determine what level of permitted eagle take we can allow. 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, which is available at http://eagleruleprocess.org, estimates population sizes, productivity, and survival rates for both species; analyzes 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 serves as the biological basis for the revised regulatory management framework in these regulation revisions and the preferred alternative in the programmatic EIS (PEIS). The following discussion pertaining to the status of bald and golden eagle populations summarizes some of the information VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 provided and explained in more detail in the Status Report, available at http:// eagleruleprocess.org. 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 of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.)), 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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 41,500 (20th quantile = 35,000) in 2014, updated from 40,000 in the draft PEIS based on comments we received from the Alaska Department of Fish and Game. However, although the golden eagle population trend estimate based on current surveys is stable, an estimate from a population model similar to that used for the bald eagle suggests the population in the western United States might be declining toward 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 agespecific survival rates with and without current levels of anthropogenic mortality. Anthropogenic factors were responsible for about 56% of satellitetagged golden eagle mortality, with the highest rates of anthropogenic mortality 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 (the number of eagles that can be removed from the population while still achieving a stable population compared to the 2009 baseline) of golden eagles under those conditions would be 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: http://eagleruleprocess.org. 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. The Service defined this preservation standard in the preamble to the 2009 regulations to mean ‘‘consistent with the goal of stable or increasing breeding populations.’’ We are incorporating a modified definition of that standard into the regulations. We E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations now define the preservation standard to mean ‘‘consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of each species.’’ The timeframe the Service used for modeling and assessing eagle population demographics is 100 years (at least eight generations) for both eagle species relative to the 2009 baseline. ‘‘Eagle management unit’’ is defined as ‘‘a geographically bounded region within which permitted take is regulated to meet the management goal of maintaining stable or increasing breeding populations of bald or golden eagles.’’ The eagle management objective embodied in the revised definition of the preservation standard 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)). During the scoping period for the PEIS, the Service sought and received public comment on how the preservation standard should be defined and applied. We 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 ESAlisted species, and to ignore these data or to independently reassess them for each permit is inconsistent with the VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 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 elected to retain the quantitative approach because it is explicit, allows less room for subjective interpretation, and can be consistently implemented throughout the country and across the types of activities that require permits. Our 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 (16 U.S.C. 1361 et seq.). The revised preservation standard— ‘‘consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the 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, and to better align with State and tribal interests in local eagle population management. To meet this objective in a scientifically rigorous manner, the Service manages eagles at two scales: (1) Eagle management units (EMUs), which are regional populations of eagles over which the Service strives to meet the objective of population stability or growth, relative to population size in the baseline year of 2009, over 100 years; and (2) local area populations, which are finer-scale areas defined by eagle dispersal criteria that are specific to each permitted action and over which the Service seeks to ensure take does not cause the extirpation of either eagle species. The Service used modern scientific methods to estimate the take rate (the proportion of the population that can be removed annually) that can be authorized for each species of eagle in each EMU while meeting our management objectives. These estimates are in the form of probability distributions that account for scientific uncertainty in both the modeling process and in the biological data used in the models. For the liberal PEIS alternatives, the Service used the median of model estimates for important parameters (e.g., population size, take rate) to calculate take limits (the number of eagles that can be removed annually at the EMU- and, separately, the LAP-scale and still meet the management objective); this PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 91497 approach shares the risk posed by uncertainty equally between being under-protective of eagles and being unnecessarily over-restrictive on activities that might take eagles. For the conservative PEIS alternatives, the Service used values that allocated risk in an 80:20 ratio in favor of being overprotective of eagles. By defining the eagle preservation standard in this way, and analyzing the effects of take within those take limits in the PEIS, the analytical burden for each permit decision is greatly reduced, allowing the Service to make informed permitting decisions at an expedited rate. The regulatory revisions in this final rule 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 PEIS. 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, and considering the updated demographic data compiled by the Service and presented in the Status Report, we have determined there is considerable capacity for sustainable take of bald eagles. Under the management approach we are adopting, the sustainable annual take limit (without compensatory mitigation) would be 3,742 bald eagles in the coterminous United States. Initially, the Service proposed to set unmitigated take limits of only 500 bald eagles annually in Alaska because our population data there are less rigorous than elsewhere in the United States. However, in response to compelling comments from the Alaska Department of Fish and Game (see Response to Public Comments, below, for more details), we have revised the sustainable take rate for Alaska to 3,776, based on the sustainable take rate of 6% under the preferred alternative in the PEIS. The Service does not expect authorized take under the revised sustainable take limits to approach the new take limit in Alaska or nationwide. In fact, there is nothing in the revised regulations that will increase take, though we hope more ongoing unpermitted take will be captured under permits in the future. E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91498 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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 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, requiring that all authorized take be offset by compensatory mitigation. We are 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 are used to administer migratory bird resources. Both bald and golden eagles move over great distances seasonally and across years. There is a welldescribed annual seasonal migration of both species of eagles from northern regions southward in winter. An annual northward migration of bald eagles from southern regions in spring is welldocumented, 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 better aligns with seasonal movement patterns of both species and better addresses geographic patterns of risk given those seasonal movement patterns. We are aware of preliminary data on golden eagles tracked with satellite telemetry that indicate a flyway configuration for EMUs may not capture movement patterns of resident golden eagles as well as finer-scale landscape mapping systems. The results of that study were intended to be completed and included in the Status Report, but VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 the work was not completed in time. In its place the Service conducted an analysis of banding data, and those results are reported in the Status Report. Neither analysis is ideal because the distribution of deployed bands and satellite tags has not been random. While the banding data have the advantage of much larger sample sizes, the satellite-tag data have the advantage of much more precise tracking of a smaller number of individuals. The Service will consider the information from the satellite telemetry study in future re-assessments of eagle status and management objectives. In the approach we are now adopting, we will use the flyways as the EMUs for both species—with some modifications. The 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 combining 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 PEIS 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. EMU take limits are increased accordingly because the flyway management units are fewer and larger than the EMUs currently in use (for bald eagles; golden eagle take limits would be zero in all management units, unless offset). Each flyway unit covers several current EMUs. In some ways, increasing the EMU size could be less protective of eagle populations at more local scales. However, any potential decreased protection of local eagle populations caused by increasing the size of the EMUs is more than compensated for by two provisions designed to increase protection of eagles at more local scales. First, as noted earlier, we modify the preservation standard of the Eagle Act to include the goal of maintaining the PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 persistence of local populations throughout the geographic range of both species, and codify the new definition in the regulations at 50 CFR 22.3. The definition reads: ‘‘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 the persistence of local populations throughout the geographic range of each species.’’ These revised regulations also enhance protection of eagles at the local scale by incorporating a local area population (LAP) cumulative effects analysis into the permit issuance criteria. The LAP analysis, which is detailed in Appendix F of the Eagle Conservation Plan Guidance, Module 1—Land-based Wind Energy (ECPG) (USFWS 2013), 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 a 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). We derive the size of the LAP by multiplying the 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 movements 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 E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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 and 109 miles for golden eagles. These could change in the future if additional data indicate the need for adjustment. The LAP cumulative effects analysis is described in more detail in the Status Report. Prior to this rulemaking, the LAP cumulative effects analysis has been used as guidance. Under these revised regulations, the LAP analysis is 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 if compensatory mitigation offsets 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 will 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 have already analyzed the effects of authorizing take of up to 5% of the LAP in the PEIS for these 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 VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 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 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 will 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. While evidence of excessive unpermitted take does not necessarily preclude the Service from issuing a permit, it would be taken into consideration in evaluating whether to issue the permit and is likely to entail additional environmental analysis to determine whether issuance of the permit is compatible with the preservation of eagles. 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. For disturbance to have the potential of a population effect, it has to result in a loss of potential productivity. In 2009, the Service used the EMU-specific mean number of young fledged per occupied PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 91499 nesting territory for each species per year as the expected loss under nest disturbance permits for each instance of nest disturbance. We use the same approach in this revision, but with updated take values based on the new productivity information for each eagle species (see the Status Report). Nonpurposeful (Incidental) Take Permits (50 CFR 22.26) We are changing the name of what we have been calling ‘‘nonpurposeful take permits’’ to ‘‘incidental take permits.’’ Incidental take is what § 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 endangered and threatened species. However, the term ‘‘nonpurposeful’’ also caused confusion because it is not a commonly used word. The meaning of ‘‘incidental’’ 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. Because ‘‘nonpurposeful take’’ and ‘‘incidental take’’ mean the same thing, the change in nomenclature does not in any way affect the circumstances and manner in which these permits will be issued. In these revised regulations, the types of incidental take permits we can issue under § 22.26 are reduced from two to one. There will no longer be separate categories for standard and programmatic permits. Having two separate categories has sometimes led to confusion because 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 was 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 eliminate the distinction between standard and programmatic permits. All § 22.26 permits are now simply ‘‘eagle incidental take permits’’ or ‘‘incidental take permits.’’ E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91500 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Under the 2009 regulations, programmatic permits were contingent 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.’’ In contrast, we have required that applicants for standard permits under the current regulations reduce potential take to a level where it is ‘‘practicably unavoidable’’ [emphasis added]. Thus, programmatic permit applicants were subject to 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.’’ Thus the revised regulations apply the ‘‘practicability standard’’ to all § 22.26 permits. We are revising the definition of ‘‘practicable’’ by adopting the definition from the Service’s proposed mitigation policy (see 81 FR 12380; Mar. 8, 2016), slightly modified for specific application to eagle permits. The new definition reads: ‘‘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 eagles and the activity’s overall purpose, scope, and scale.’’ The revised definition captures the essential elements of the old definition, while promoting a consistent approach to how the Service applies compensatory mitigation requirements across all programs. 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, the requirement for ACPs is removed from the regulations. As discussed above, all permittees would be required to avoid and minimize impacts to eagles to the maximum degree practicable. Although the ACP requirement no longer applies, the Service will require potential permittees to implement all practicable best management practices and other measures that are reasonably likely to reduce eagle take. Permit applicants that cannot reduce or compensate for take to levels that are compatible with eagle preservation will not qualify for a permit. We believe a 5-year maximum permit term for permits is unnecessarily burdensome for entities engaged in VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 long-term actions that have the potential to incidentally take bald or golden eagles over the lifetime of the activity. The 5-year maximum permit duration 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 will provide a degree of certainty to project proponents because they will 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 that occurs, the opportunity to apply avoidance, minimization, and other mitigation measures is lost. We believe 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, will enhance eagle conservation in contrast to project proponents avoiding the permitting process altogether because they perceive the process as overly onerous. Under the revised regulations, the Service will evaluate each long-term 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. Long-term permits are required to include adaptive management provisions that provide for additional or changed mitigation measures under specified conditions, for example, under increasing levels of eagle take. Provided permittees are in compliance with their permit, including adaptive management measures and take levels, 5-year reviews will primarily consist of updating take estimates and related compensatory mitigation for the next 5 years. Conversely, the 5-year review provides an opportunity for the Service to amend the permit to reduce or eliminate PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 conservation measures or other permit conditions that prove to be ineffective or unnecessary. Under the proposed regulations, a long-term permittee may also have been required to undertake additional, practicable conservation measures not spelled out in the adaptive management permit conditions, even if the permittee is in compliance with the terms of the permit, if such measures were reasonably likely to reduce risk to eagles based on the best scientific information available. However, these final regulations limit such additional conservation measures to when authorized take levels are exceeded in a manner or to a degree not addressed in the adaptive management conditions of the permit. Based on public comment, the proposed provision appeared likely to disincentivize project proponents from seeking permits. Rather, for a permittee in compliance with permit terms and conditions, conservation and mitigation measures beyond the terms of a permit are voluntary. Take estimates and compensatory mitigation requirements would be adjusted if such measures were implemented. Permit suspension and revocation procedures will remain available for extreme cases if new measures sufficient to meet the preservation standard cannot be negotiated with the permit holder. The revised regulations require applicants and permittees to use Service-approved protocols for conducting pre-application surveys, fatality predictions, and monitoring under permits, unless waived by the Service. The regulations provide that, if the Service has, through rulemaking procedures, officially issued or endorsed survey, modeling, or other data quality standards for the activity, those are the standards and protocols that must be used (unless the Service waives the requirement for that applicant). Applicants engaged in other activities for which the Service has not adopted official protocols must coordinate with the Service to develop project-specific monitoring and survey protocols. The requirement to use Service-approved protocols 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. Specific application of these requirements to wind energy facilities is described below under Survey Requirements for Incidental Take Permits for Wind Energy Facilities. E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations While we have not officially issued fatality prediction models or preapplication monitoring protocols for activities other than wind energy generation, 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 permit application 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. asabaliauskas on DSK3SPTVN1PROD with RULES Survey Requirements for Incidental Take Permits for Wind Energy Facilities Many of the comments on the proposed rule focused on the subset of prospective incidental take permits that relate to wind energy. These comments were helpful, yet indicated a general lack of understanding of how the Service’s proposed approach to manage incidental take at wind facilities under an adaptive management framework is intended to work. For this reason, and because the permitting approach developed for wind facilities provides an example of how the Service intends to implement incidental take permitting for other activities, we have expanded our description of the overall approach here in the preamble to the rule. The Service’s emphasis on eagle incidental take permits for wind facilities reflects Administration priorities for expanded wind energy development and a desire to minimize the impacts of that growth on eagles; it does not reflect a belief that wind development poses a disproportionate risk compared to other activities that may incidentally take eagles, nor does it reflect any greater availability of permits to wind companies versus other types of industries that may need eagle incidental take permits. Preconstruction Survey Standards for Wind Energy Facilities In the proposed rule, the Service proposed to incorporate by reference Appendices C and D of the ECPG as standards for collection and analysis of data to support eagle incidental take permit applications for wind facilities, and we indicated our intent to develop similar standards for other activities in the future. This proposal was not supported by many commenters for a VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 range of reasons, but primarily because of a perceived lack of demonstrated scientific credibility in the methods and tools. However, the Service does not agree that abandoning the concept of standardized data collection for permits is a tenable way forward. First, one major objective of this rulemaking is to expedite the permitting process, and our experience has been that the negotiation over and use of disparate methods for initial data collection contribute greatly to the time required to develop and process a permit application. Second, as we explain below, the Service intends to use formal adaptive management to improve the scientific rigor and the performance of the impact-prediction tools used in the eagle permitting program. The Service’s adaptive management process requires a minimum level of standardization in the initial input data where those standards exist, and this will result in each permit contributing to and improving the scientific credibility of the permitting process. For now, the only activity for which we have such standards is wind energy generation. Those standards have been through two rounds of notice and public comment, as well as two rounds of scientific peer review. Rather than incorporate the relevant appendices from the ECPG into the rule by reference, in response to the comments received the Service has instead decided to include minimal pre-construction survey standards for eagle incidental take permits for wind facilities directly in the rule itself. The rule language was developed from the specific recommendations in Appendix C of the ECPG, and represents the minimum level of information and the least sophistication in sampling design that will be acceptable for the Service to evaluate and decide whether to issue an eagle take permit for a wind facility. These standards will ensure that representative eagle exposure data are available with which to predict eagle fatalities consistent with the Service’s adaptive management program. The rule allows for deviations from the minimum standards, but only if the applicant consults with the Service early in the project-development process. In most cases both the Service and permit applicant will benefit by using this exception to design surveys that are designed to accommodate variation in eagle abundance over both space and time. The precision, consistency, and utility of data from point count surveys for eagles can be much improved by incorporating some basic, commonsense sideboards into the survey design PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 91501 as discussed in the ECPG (Appendix C). These include: (1) Conducting eagle surveys and small bird surveys separately, to avoid overlooking large birds while searching at a much smaller scale for small songbirds; (2) using trained observers that are capable of accurate bird identification and distance estimation; (3) distributing surveys across daylight hours (e.g., morning: Sunrise to 1100 hours; midday: 1101– 1600 hours; evening: 1601 hours to sunset), and by designing surveys to more intensively cover the midday period in areas where eagle flight is more likely at that time of day; and (4) conducting surveys under all weather conditions except when visibility is less than 800 meters (m) horizontally and 200 m vertically. Adaptive Management and Wind Energy Collision Risk Modeling An overarching issue with eagle incidental take permits is uncertainty. For wind facilities, there is considerable uncertainty regarding the risk of turbines to eagles, factors associated with that risk, and whether there are tangible ways to reduce the risk. Moreover, in 2009, when the Service established the incidental eagle take regulations, there was no scientifically accepted approach for quantitatively estimating the probability of eagle take at individual wind facilities. This quantitative probability estimation is necessary for the Service to establish a take limit for each permit and to ensure that EMU take limits are not exceeded, or if they are exceeded, that appropriate compensatory mitigation is accomplished. The Service has adopted two key principles for eagle incidental take permitting at wind facilities to address this uncertainty: (1) Use of formal adaptive management; and (2) being risk-averse at the outset with respect to estimating impacts on eagles. The Department of the Interior has a long history of approaching decisions in situations fraught with uncertainty using adaptive management (Williams et al. 2009). Adaptive management is a process of adaptive learning, whereby: (1) Predictions are made regarding anticipated effects of an activity; (2) data regarding the outcomes of the activity are collected; (3) the predictions are updated to reflect the actual outcomes of the activity; and (4) the updated predictions are used to change the activity, either in the future at the same site or at other places where the same activity is being contemplated. The Service has described its adaptive management framework for eagle incidental take permits for wind energy facilities in the ECPG (Appendix A) E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91502 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations (U.S. Fish and Wildlife Service 2013), and the overall framework is intended to account for uncertainty in the effects of wind facility siting, design, and operations on eagles. More broadly than for just wind energy, the adaptive management process is also intended to address uncertainty in compensatory mitigation and the effects of take rates on eagles. With regard to managing risk, the survey, monitoring, and information collection standards for eagle incidental take permits are all designed to provide data that allow for the quantification of uncertainty, primarily by providing estimates in the form of probability distributions. This allows the Service to explicitly describe its risk tolerance (i.e., being protective of eagles or protective of interests that might take eagles) for each aspect of the permitting process. Together, the adaptive management and risk management processes function as a means for describing how the risk, in the form of uncertainty, is shared between the protected resource and the regulated community. The part of the Service’s adaptive management process for eagle incidental take permits that has generated the greatest debate is the approach and model used to predict eagle fatalities at wind facilities. For that reason, and because this is an excellent example of the Service’s philosophy regarding the application of adaptive management to eagle permitting, we describe the fatality prediction process here in some detail. The Service’s baseline fatality prediction model, also referred to as a collision risk model (CRM), is thoroughly described in Appendix D of the ECPG and in New, et al. (2015). The key points are that the CRM uses: (1) A project-specific estimate of eagle exposure; (2) a project-specific estimate of the amount of hazardous area and time that will be created by the project; and (3) an estimate of the probability that an exposed eagle that enters the hazardous area will be struck and injured or killed by a turbine blade; to generate (4) an annual eagle fatality estimate in the form of a probability distribution. The model assumes a predictable relationship between eagle exposure, hazardous area, and the risk of fatalities—a relationship that existing literature, some commenters, and the Service agree is not straightforward. The ECPG identifies 11 general categories of covariates (variables that help explain variation in the parameter of interest) that the Service believes may affect eagle collision probability to some degree. However, these are not presently incorporated into the CRM because, as pointed out by peer reviewers of the VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 draft ECPG, scientific support for the role of these factors in collision risk is speculative and not quantifiable at this time. Furthermore, the effects of these factors may be varied across locations. The CRM uses Bayesian statistics to formally combine existing (prior) data with project-specific data to determine eagle exposure and collision probability (assuming the number and size of turbines to be built, and thus hazardous area, are known). The Service requires eagle incidental take permit applicants to conduct pre-construction eagle use surveys within the footprint of the planned wind facility to generate project-specific data on pre-construction eagle exposure. These pre-construction survey data are formally combined with prior information on eagle exposure nationally to generate a probability distribution for eagle use for the specific project area. In the case of collision probability, however, there are no project-specific data to combine with the prior data until after the project has operated for several years; thus only the prior information is available to be used for the initial collision probability estimate. The Service uses prior information on collision probability from the only wind facilities that had publicly available data on eagle use and post-construction fatalities at the time the ECPG was written in 2013. These post-construction data came from four facilities, did not include information for bald eagles, and some data were from older-style wind turbines that might have different collision probabilities than modern turbines. However, these potential data deficiencies only affect the initial eagle fatality estimates at permitted wind facilities. This is because the Service’s adaptive management approach calls for formally combining the prior information with standardized data collected on actual eagle fatalities after the facility becomes operational. These updates would occur no less frequently than once every 5 years at each facility. Such updates will naturally correct for any bias in the initial ‘‘collision-priorbased’’ fatality estimate, so that the fatality estimates over most of the life of a wind facility will be heavily weighted towards actual fatality data from the site. Moreover, because the postconstruction fatality information will be collected under standardized protocols required by the terms and conditions of each permit, the data can be combined with data from other permitted wind facilities to update and improve the collision probability prior for the national CRM. Thus, the Service intends to improve the predictive accuracy of PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 the CRM both at the individual project level and nationally through standardized use as a formal part of its adaptive management process. We could not achieve improved accuracy of the CRM without standardized use of these protocols. Uncertainty in the project-specific fatality estimates comes from both the prior and project-specific data for eagle exposure, and, initially, from the prior information on collision probability. The Service has made the decision to manage the quantified uncertainty in the CRM estimates in a manner that reduces the risk of underestimating eagle fatalities at wind facilities. The Service views this as important both to ensure the risk to eagles is not underrated, but also to minimize the chance that a permittee will illegally exceed his or her authorized eagle take limit. The median (50th quantile) fatality rate of the CRM-generated probability distribution is the point on the distribution at which there is an equal risk of under- and overestimating eagle fatalities. The Service uses the 80th quantile of the CRM fatality probability distribution to determine the take limit for incidental take permits, which shifts the risk to a 20% chance of underestimating eagle take. Improvements in the precision of the CRM estimates through adaptive management, both at the project level and nationally, should decrease uncertainty and thus shrink the magnitude of the difference between the median fatality rate and the permitted take limit over time. For now, however, the Service acknowledges that its fatality estimates for wind facilities are both higher than what is expected and higher than what is likely to be observed, and that this bias is intentional. The Service’s adaptive management approach for the incidental eagle take permits necessitates the collection of standardized pre- and post-construction data and the use of the CRM, or a model much like it, to generate and update fatality estimates. For this reason, in the proposed rule the Service contemplated codifying its current guidance regarding data collection and fatality predictions in the regulations. There was considerable opposition to this among commenters, with most opponents citing the need to remain flexible so that new information could be incorporated rapidly into the permitting process. In response to these comments, the Service has modified its proposal for the final rule in two substantive ways. First, the final regulations do not incorporate by reference Appendices C and D of the ECPG. However, because the adaptive E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations management process cannot function credibly without standardized preconstruction site-specific eagle exposure data, the Service has instead incorporated minimum standards for such data directly into the final rule, subject to waiver under exceptional circumstances (see above discussion on pre-construction survey protocols for wind energy facilities). Second, the Service will not require permit applicants to use the CRM to estimate eagle fatalities for their permit applications. Instead, project proponents can use any credible, scientifically peer-reviewed model to generate eagle fatality and associated uncertainty estimates for their permit applications. The Service will then use the standardized project data supplied by the permit applicant and the Service’s CRM to generate a predicted number of fatalities for each incidental eagle take permit for a wind facility, and the 80th quantile of the CRM estimate will be the take limit for the permit except under exceptional circumstance. The Service will treat any alternative models used by the permit applicant as candidate models whose performance may be compared formally to that of the CRM as part of the adaptive management process. Any alternative models that, over time, demonstrate better or comparable predictive performance to the CRM could eventually be formally incorporated into the adaptive management process for estimating permit take limits. The Service intends the adaptive management process to eventually provide: (1) A better understanding of, and ability to quantify, factors associated with eagle collision risk; (2) a more accurate estimate of collision probability for bald eagles, and (3) data suitable for updating the original golden eagle collision and exposure priors (the exposure prior is the average eagle exposure value based on all available previously existing information) for the CRM. However, to date, so few incidental take permits have been issued at wind facilities that no progress has been made in these areas. In particular, the lack of progress towards updating the collision probability prior has generated opposition to the entire eagle incidental take permit adaptive management process. Wind facility operators and their consultants believe the CRM with the original collision prior (the estimated probability, based on all available previously existing information, that an eagle that flies into the hazardous area around wind turbine will collide with a blade) produces fatality estimates that are too large, and VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 in cases where compensatory mitigation is required (e.g., for take of golden eagles), the mitigation requirements exceed what is necessary. This concern is offset somewhat by the Service’s policy that excess mitigation accomplished in the first 5 years of a wind project’s operations will be credited towards future year obligations (which, as described briefly above and in more detail below, will be based on CRM estimates that are adjusted after no more than 5 years of operation to include a site-specific collision probability). However, this policy has not appreciably reduced concern about use of the CRM, as expressed by many commenters on the proposed rule. To address this particular concern, within 18 months the Service intends to update the collision prior for the CRM using publicly available data collected at wind facilities operating without incidental eagle take permits. The Service believes that these types of data can be appropriate for such an update, provided the data and protocols under which they were collected can be verified and shown to be appropriate, and that the wind facilities that make their data available are sufficiently representative of a cross section of wind facilities in operation today. The Service is already engaged in a process to update priors and other data for modeling eagle take and plans to revise the CRM and Appendix D of the ECPG through a public process. As part of this process the Service will also consider ways of expediting improvements in the CRM relative to incorporating other covariates associated with eagle risk and a species-specific prior collision probability for bald eagles. As stated above, the Service intends to maintain its policy of disproportionately sharing risk to avoid underestimating eagle take at individual wind facilities. We believe this is appropriate because the consequences of underestimating eagle take are far greater than the consequences of overestimating take, and not just because of unintended consequences on eagle populations. Avoiding underestimating eagle take significantly reduces uncertainty for permittees. For example, if eagle take at the individual permit level was consistently underestimated, many permittees would exceed their permitted take limits, necessitating permit amendments, additional costly and unplanned afterthe-fact compensatory mitigation actions, and possible enforcement with associated fines. For bald eagles with positive EMU take thresholds, consistently underestimating take could PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 91503 lead to permitted take exceeding the EMU take limit, which would necessitate retroactively requiring permittees that initially had no compensatory mitigation requirements to implement mitigation after the fact. Further, if LAP take limits were unexpectedly exceeded, NEPA compliance for permits overlapping the affected LAP would have to be reviewed. Although these consequences are most likely if there is a systematic bias in the fatality estimates themselves, even with an unbiased estimator, some of these consequences could be expected with 50% of permits if the Service were to use the median fatality rate as the take limit for individual permits. In contrast, if permitted take is set at a higher percentile of the fatality prediction, the primary consequences are that the permittee is likely to exceed actual compensatory mitigation requirements over the first 5 years of operation (if compensatory mitigation is required). Additionally, the Service would likely routinely debit some take from the EMU and LAP take limits unnecessarily, thereby underestimating available take when considering new permit requests. Both of these issues are at least partially remedied when initial take estimates for projects are adjusted with project-specific fatality data after the first 5 years of operation. At that time, permittees receive credit for any excess compensatory mitigation they have achieved, as described above, and the debits from the EMU and LAP take limits are recalibrated to reflect the updated expectations for future take. These actions are comparatively simple to implement, and do not have the same kind of far-reaching consequences as with underestimates. Monitoring and Mitigation Most permittees will be required to monitor eagle take to assess whether and how much take occurs under the permit. Reported take will be based on surveying and monitoring protocols required by the permit. For permits for disturbance, such monitoring is likely to consist of regular visits to the proximity of the nest site or other important eagleuse area where disturbance is likely to occur to observe whether eagles are using the area. We agree with the large number of commenters that urged the Service to require third-party monitoring for some permits. As we stated in the preamble to the proposed regulations, we were considering that option. These final regulations require that, for all permits with durations longer than 5 years, monitoring must be conducted by qualified, independent entities report E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91504 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations directly to the Service. In the case of permits of 5-year durations or shorter, such third-party monitoring may be required on a case-by-case basis. We do not believe there will be significant additional costs imposed by the requirement for third-party monitoring. Most companies already rely on and pay for consultants to conduct project monitoring, presumably because it is more cost-effective than supporting those activities ‘‘in-house.’’ We expect that most long-term permits will authorize incidental lethal take rather than disturbance. Those conducting monitoring for permits that authorize eagle mortalities will be required to search for injured and killed eagles and to estimate total take using methods approved by the Service. Permittees will 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 the probability of detection. The Service defines ‘‘mitigation’’ to sequentially include: Avoidance, minimization, rectification, reduction over time, and compensation for negative impacts. Under Departmental policy (600 DM 6), ‘‘compensatory mitigation’’ means ‘‘to compensate for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied, by replacing or providing substitute resources or environments (see 40 CFR 1508.20) through the restoration, establishment, enhancement, or preservation of resources and their values, services, and functions.’’ The 2009 eagle 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, we have 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 VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 46836, p. 46844). Regarding the § 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 46836, p. 46845). 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 largescale 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 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. These regulations require compensatory mitigation for any permit authorizing take that would exceed authorized take limits. Compensatory mitigation for this purpose must demonstrate it offsets authorized take by reducing another ongoing form of mortality by an equal or greater amount than the unavoidable mortality, or increasing the eagle population by an equal or greater amount. 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 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 migration and wintering range in the interior western United States and northern Mexico). The best available information indicates that ongoing levels of humancaused mortality of golden eagles likely exceed sustainable take rates, potentially significantly. This means that the golden eagle population is likely in decline and not meeting the Service’s preservation goal of a stable or increasing breeding population. As a result, compensatory mitigation for any authorized take of golden eagles that exceeds take thresholds will be designed to offset the authorized take at a 1.2 to 1 mitigation ratio to further an outcome consistent with the preservation of golden eagles as the result of the permit. We believe this baseline mitigation ratio appropriately balances meeting our obligations under the Eagle Act with what is reasonable, fair, and practicable to permittees. Based on the uncertainty in the effectiveness of a particular compensatory mitigation practice and other factors common to mitigation programs, we may require further adjustments to mitigation ratios. To be compatible with the preservation of eagles, take that would compromise the persistence of local populations of eagles may also require compensatory mitigation. The regulations account for this by generally requiring compensatory mitigation for cumulative authorized take exceeding 5% of the LAP 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 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). We have no data to indicate that ongoing unauthorized take of bald eagles is less than that of golden eagles, and intend 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 because of the improved status of bald eagles, states, tribes, and localities have communicated their interest in seeing regulatory safeguards to protect local bald eagles as well as golden eagles. In E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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. We received comments asserting that it is unfair for the Service to impose a greater than one to one compensatory mitigation ratio for golden eagle take permits because people seeking to comply with the regulations should not be required to address impacts caused by other human activities for which no one is being held accountable. Similar concerns were expressed regarding the consideration of unauthorized take within the LAP when making permitting decisions. Additional commenters asserted that the Service does not adequately enforce the Eagle Act. In response to all of those comments, we wish to clarify that, outside of its permitting programs, the Service is addressing unauthorized take of bald eagles and golden eagles through a variety of means. The Service’s Office of Law Enforcement expends considerable time and resources protecting both species. Because golden eagles in particular are experiencing significant amounts of human caused mortality, they are receiving high levels of investigative effort throughout the western United States. These investigations have covered the unlawful killing and trafficking of eagles and their parts, electrocutions of eagles from electrical distribution infrastructure, intentional or incidental poisoning of eagles, eagle mortality due to wind turbine strikes, eagle nest destruction, and a host of other human activities that result in eagle deaths. Investigation and prosecution of these crimes can be very time intensive, with some investigations requiring many hundreds of hours to complete. Many of these investigations require thorough review of historical information on the activity causing the mortality, investigation of the responsible party’s efforts to avoid the eagle deaths, and presentation of investigative results to the Department of Justice (DOJ) for potential prosecution. This is often accomplished through subpoenas, search warrants, field inspections (often in remote areas), evidence collection, interviews, and report writing. For activities involving the intentional killing and trafficking of eagles, the investigative techniques can also include the use of undercover operations to gain evidence and better document the extent of the unlawful VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 activity. In short, the Service’s Office of Law Enforcement places a high priority on protecting bald and golden eagles, and expends considerable effort on education, outreach, and investigations to fulfill this responsibility. This final rule establishes standards applicable to all compensatory mitigation in accordance with principles and standards set forth in Service and Departmental and Executive Branch policy. Compensatory mitigation is to be used to offset remaining impacts after the application of all practicable avoidance and minimization measures. Compensatory mitigation must 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. Compensatory mitigation must be based on the best available science and must use rigorous compliance and effectiveness monitoring and evaluation to make certain that mitigation measures achieve their intended outcomes or that necessary changes are implemented to achieve them. Compensatory mitigation must provide benefits beyond those that would otherwise have occurred through routine or required practices or actions, or obligations required through other legal authorities or contractual agreements. A compensatory mitigation measure is ‘‘additional’’ when the benefits of the measure improve upon the baseline conditions of the impacted eagle species in a manner that is demonstrably new and would not have occurred without the required compensatory mitigation measure. Voluntary actions taken to benefit eagles in anticipation of and prior to issuance of an eagle take permit may be credited towards compensatory mitigation requirements. Such actions must meet all mitigation standards set forth in the rule for compensatory mitigation. Applicants must provide clear evidence that the voluntary action was undertaken to fulfill compensatory mitigation requirements under this rule. The Service will determine whether and how much to credit such actions. Potential applicants intending to take voluntary conservation actions prior to permit application are encouraged to seek technical assistance from the Service. Compensatory mitigation must be durable and, at a minimum, maintain its intended purpose for as long as the impacts of the authorized take persist. The Service will require that implementation assurances, including PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 91505 legal, contractual, and financial assurances, be in place when necessary to assure the development, maintenance, and long-term viability of the mitigation measure. Compensatory mitigation must also include mechanisms to account for and address uncertainty and risk of failure of a compensatory mitigation measure. This could be in the form of greater mitigation ratios, the establishment of buffers or reserve accounts, or other mechanisms. Compensatory mitigation may include conservation banking, in-lieu fee programs, and other third-party mitigation projects or arrangements. 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. Where compensatory mitigation is 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 will be required to provide compensatory mitigation to offset predicted take over each 5-year period. If reliable reported data demonstrate 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. The Service will develop guidance for different types of compensatory mitigation projects for eagles, for example power pole retrofits to reduce eagle electrocution. Guidance will include methods and standards for determining credits (i.e., how much of the type of mitigation is needed to offset one eagle), mitigation ratios based on uncertainty, temporal loss and related factors, durability assurance requirements, compliance and effectiveness monitoring requirements, and other important implementation considerations. When practical, we will involve stakeholders in the development of such guidance. Additional Revisions These regulations include several minor revisions 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 E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91506 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations be met with eagle parts and/or feathers from another source, such as the National Eagle Repository) is amended so that it applies to increased need for take for religious purposes. Historical tribal take for religious use requiring take of eagles from the wild that has been ongoing, but not authorized, generally does not need to be prioritized because it is part of the environmental baseline set in the 2009 FEA. However, increases in historical take levels would not be part of the current baseline. We also are removing 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. In addition, we are 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. Unauthorized eagle take is prohibited by law. The options available for addressing future eagle take differ from those for addressing past take. Future take may be addressed proactively through a nonpurposeful (incidental) take permit issued under the Eagle Act and the 50 CFR part 22 permit regulations. If such a permit is sought by an applicant and issued by the Service, it will protect the permittee from criminal prosecution or civil law enforcement for any eagle take authorized by the permit. If enforcement action has been taken to address past eagle take by an applicant, then the Service will consider any pending or completed resolution of that enforcement when evaluating an application and determining whether to issue an eagle incidental take permit. The Service will do so in order to be consistent with the general responsibility criteria set out in 50 CFR part 13 for all permits (whether or not eagle permits) issued under 50 CFR Subchapter B. A permit can be issued without resolving unauthorized past eagle take; however, the applicant continues to be subject to an enforcement action at any time for unpermitted prior take of eagles. Depending on the circumstances of a past take, the U.S. Department of Justice or the Service’s Office of Law Enforcement may determine that enforcement is warranted using appropriate enforcement authorities. The Service will take into consideration the nature, circumstances, extent, and gravity of the prohibited acts committed in the violation and with respect to the violator the degree of culpability and cooperation, history of noncompliance, VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 levels of past take, and efforts to reduce take. The statute of limitations for criminal and civil enforcement actions is five years. These revised regulations include a provision at § 22.26(f)(7) that requires the Service to determine, before issuing a permit, that issuance of the permit will not interfere with an ongoing civil or criminal action concerning unpermitted past eagle take at the project. One element of civil and criminal cases is establishing that take of eagles is not permitted, requiring coordination between the Service law enforcement and migratory bird programs early in an investigation. Later in the process, court judgments may include a sentencing or probation condition that an eagle take permit be sought, or where settlement negotiations have been successful, the settlement agreement often includes a requirement that a company apply for an eagle take permit. Without such a determination, issuance of a permit might in some cases disrupt the ongoing investigation, prosecution, or negotiation process. To recoup the cost of processing longer-term permits, which are generally complex due to the need to develop robust adaptive management measures, we will assess a $36,000 permit application processing fee for eagle incidental take permits of 5 years duration or longer. This fee is the same as the fee we currently require to process programmatic permits. A commercial applicant for an incidental take permit of a duration less than 5 years will 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. 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. The incidental take permit application processing fee for homeowners and other non-commercial entities remains $500, and the amendment fee for those permits is unchanged at $150. We will assess a user fee called an ‘‘administration fee’’ every 5 years for long-term permits to cover the cost to the Service of conducting the 5-year evaluation and developing any appropriate modifications to the permit. The proposed rule would have implemented a $15,000 administration PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 fee but, based on changes to the rule, and upon subsequent analysis, we have determined that an $8,000 administration fee more accurately accounts for costs the Service is likely to incur during a ‘‘typical’’ 5-year permit review. We will adjust the fee amount in future rulemakings if experience shows that $8,000 is either too high or too low to accurately account for costs. We are removing the provisions for transfer of a programmatic permit from a permittee to another entity that were codified at § 22.26(i). Those provisions were unnecessary because § 13.25(b) already provides for transfer of § 22.26 eagle incidental take permits. The Service is reviewing permit applications from, and continuing to provide technical assistance to, applicants with complex projects who are in the process of applying for eagle take permits. To prevent many of them from having to effectively restart the application process due to these revisions to the regulations, we are incorporating a 6month ‘‘grandfathering’’ period wherein applicants (persons and entities who have already submitted applications) and project proponents who are in the process of developing permit applications can choose to apply (or reapply) either under all the provisions of the 2009 regulations or all the provisions of these final regulations. The 2013 Duration Rule established a definition of ‘‘low-risk’’ projects that was subsequently vacated by a federal district court decision (Shearwater v. Ashe, No. 5:14–cv–02830 LHK (N.D. Cal. Aug. 11, 2015)). After subsequent consideration, we found this definition to be counter-productive. In the Duration Rule, the Service defined ‘‘low-risk’’ in a footnote to 50 CFR 13.11(d)(4) as a project or activity that is unlikely to take an eagle over a 30year 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 (or less than 1 eagle over a 30-year period). In retrospect, that definition would not have proved useful because it would have covered only those projects where take is essentially negligible, and, therefore, the project would likely not require a permit in the first place. We 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, despite seeking input from the public and considerable staff effort, we were unable to develop E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES a definition of ‘‘low-risk’’ that could be consistently applied throughout the United States while achieving our desired goals for a ‘‘low-risk’’ category. The Service considered basing the lowrisk 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 did not propose a revised definition for low-risk projects in the proposed rule. Instead, we again sought comment on how to define ‘‘lowrisk’’ or ‘‘low-impact’’ take of eagles, and on other approaches for authorizing take, such as a general permit authorization. The proposed rule stated that while comments would be outside the scope of this rulemaking action, we would keep them on file for later consideration in a future rulemaking. Several commenters provided input on this topic, and we will retain those comments to help inform future guidance or rulemaking. We intend to continue the public process to further develop criteria and an approach that minimizes 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. Eagle Nest Take Permits (50 CFR 22.27) Under the 2009 eagle nest take regulations (50 CFR 22.27), 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 § 22.26 incidental take permits, these rule revisions eliminate the distinction between programmatic and standard permits for § 22.27 nest take permits. The permit fee for removal or destruction of a single nest will remain at $500. For the same reasons as described above for § 22.26 permits, a commercial applicant for a nest take VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 permit for a single nest will 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 will increase from $150 to $500. For permits to take multiple nests, the fee is $5,000 versus $1,000 for programmatic permits, currently. For homeowners and other non-commercial entities, the nest take permit application processing fee and amendment fee will not change. These revised regulations also revise several definitions applicable to nest take permits to better comport with terms used in scientific literature. Nests that are not currently being used for reproductive purposes are defined as ‘‘alternate nests,’’ while nests that are being used are ‘‘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. An ‘‘in-use nest’’ is defined as ‘‘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 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 are revising 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’’ were not helpful for clarifying 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. The revised provision at § 22.27(a)(1)(i) enables us to issue a permit to remove an in-use nest to PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 91507 prevent a rapidly developing safety emergency situation, instead of waiting until the emergency is exigent. Without this addition, 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. The 2009 regulations provide that the Service can issue a nest take permit for an inactive (‘‘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 are revising this provision to also allow for removal of an in-use nest prior to egg-laying in order to prevent the foreseeable functional hazard from coming to fruition. The revised regulatory language allows nest removal at an earlier stage that may provide eagles an opportunity to re-nest elsewhere while also preventing the nesting eagles from rendering the human-made structure inoperable. We are removing the requirement that suitable nesting habitat be available in the area nesting population to accommodate displaced eagles for nonemergency 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 retain consideration of whether alternate nest sites are available to the displaced eagles, but an affirmative finding is not a requirement for issuing a permit. The Service will consider whether other nests are available in the ‘‘nesting territory,’’ rather than in the ‘‘area nesting population.’’ We defined ‘‘area nesting population’’ in 1982 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.’’ In addition to the typo (i.e., ‘‘resting’’ instead of ‘‘nesting’’), the definition is problematic for 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 E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91508 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations radius of the nest. We define ‘‘nesting territory’’ as ‘‘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 replaces the current definition of ‘‘territory.’’ The two definitions are functionally similar, but the new definition of ‘‘nesting territory’’ is more in line with terminology used in the biological community. Under the 2009 regulations, if a nest containing viable eggs or nestlings must be removed, transfer of the nestlings or eggs to a permitted rehabilitator or placement in a foster nest was required. 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 for transfer of eggs and nestlings has sometimes meant that the Service could not legally issue a permit necessary to alleviate the safety emergency. To address this problem, we are adding 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 on a case-by-case basis in that scenario. As with the prioritization criteria in § 22.26, these regulations amend the prioritization criteria for nest take permits to remove any priority for allocation of take to renewal of programmatic permits since that permit category is being removed. Also, the prioritization for Native American religious take is amended in the same manner as for § 22.26 incidental take permits (see earlier discussion). These revised regulations adopt mitigation standards for taking eagles nests under § 22.27 that are similar to those we are adopting for § 22.26. The exception is that permits issued under paragraph (a)(1)(iv) must apply appropriate and practicable compensatory mitigation measures as specified in the 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 VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 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 some new nests in areas of high eagle density. In those cases, the amount of compensatory mitigation may be relatively low. Data show 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) The regulations include minor revisions to the permit application processing fee table in 50 CFR 13.11. We are removing the column for Administration Fees because those fees apply only to eagle incidental take permits and not to any other type of Service permit listed in the table. The requirement for administration fees is instead incorporated into § 22.26. The table at § 13.11 also includes the updated fees for incidental take permits 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) Paragraph § 22.11(c) is revised by replacing ‘‘[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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 Treaty Act (MBTA; 16 U.S.C. 703–712) 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 § 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 MBTA, 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; Sept. 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, § 22.11(c) could be read to preclude the Service from using intraService 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 amending § 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) The regulations include several revisions to the regulations for permits for take of inactive golden eagle nests for resource development and recovery operations. The purpose of these revisions is to incorporate terminology consistent with the § 22.27 eagle nest take permit regulations. Changes to § 22.25 in this rulemaking are limited to those necessary for consistency with § 22.27, with a few additional minor revisions, as explained below. A new definition, ‘‘alternate nest’’ refers to a nest that is not currently being attended by eagles for breeding purposes. Under the 2009 regulations, such a nest was an ‘‘inactive nest,’’ the definition for which is removed from the regulations. We are also removing references to the ‘‘area nesting population.’’ As with § 22.27 nest take permits (discussed above), the relevant area of consideration is the nesting E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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 appropriate in some cases to survey golden eagle nests within the 10mile 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 does not preclude the Service from issuing a permit, but such loss will be part of our consideration of whether the take is compatible with the preservation standard and what amount of mitigation is necessary. We add the phrase ‘‘and monitoring’’ to paragraph (b)(4) of the § 22.25 permit regulations. We do, as a matter of course, require monitoring as a condition of these permits, so the regulation should be clear that we may require the permittee to monitor effects to eagles from the permitted activity and mitigation measures. Lastly, we replace the word ‘‘feasible’’ with ‘‘practicable’’ in reference to the mitigation that we will require, consistent with § 22.26, § 22.27, and agency mitigation policy. asabaliauskas on DSK3SPTVN1PROD with RULES Response to Public Comments The following section contains the substantive public comments we received on the proposed regulation revisions and our responses that explain why we do or do not incorporate the changes suggested by each commenter into this final rule. Comments that pertain to the biological framework and eagle management objectives described in the Status Report and PEIS are not included below, and are instead addressed in Appendix A to the final PEIS. Also not included below are the many comments supporting various provisions of the rulemaking. We also received numerous comments recommending regulatory actions pertaining to permits for eagle depredation, eagle falconry, and eagle propagation. We do not respond to those comments here because they are outside the scope of this rulemaking, but we will consider them if and when we initiate a rulemaking process for those permit types. Rulemaking Process Comment: Because the proposed rule will have cumulative effects on endangered and threatened species that share habitats with eagles, the Service must engage in section 7 consultation on the entire rule. The Service’s assertion that the issuance of an eagle act permit is not the ‘‘direct cause of VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 habitat degradation,’’ and hence such degradation need not be addressed as part of the NEPA process or in section 7 consultation, is legally unsupportable. Since the Eagle Act categorically prohibits the ‘‘take’’ of eagles without the Service’s permission, a Service authorization of eagle takes that could not otherwise lawfully occur surely is the legal ‘‘cause’’ of not only the deaths of eagles and other wildlife from turbine operation, but also the associated habitat degradation due to road and associated infrastructure construction. Response: Section 7 of the ESA requires Federal agencies to consult to ‘‘insure that any action authorized, funded, or carried out’’ by them ‘‘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). Intra-Service consultations and conferences consider the effects of the Service’s actions on listed, proposed, and candidate species. Our proposed action of issuing regulations regarding take of non-ESA-listed eagles does not authorize, fund, or carry out any activity that may affect—directly or indirectly— any ESA-listed species or their critical habitat. See, e.g., Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to authorize, fund or carry out project activities by third parties. The BGEPA empowers us to authorize take of bald and golden eagles. Thus, we have determined that these revisions have no effect on any listed, proposed, or candidate species or their critical habitat. As a result, section 7 consultation is not required on this proposed action. As appropriate, we will conduct project-specific section 7 consultations in the future if our proposed act of issuing a permit for take of eagles may, in and of itself, affect ESA-listed species or critical habitat. Regarding NEPA, we have analyzed the environmental effects of this rulemaking and our eagle permit framework in general in the PEIS associated with this rulemaking. Comment: The Service should have extended or should re-open the public comment period prior to finalization of the regulations to ensure a fully vetted and transparent process as required by NEPA. The 60-day comment period was unreasonably short given the importance of the issue and the magnitude of information provided in the documents. Response: NEPA does not address the public comment periods required for rulemaking. Whether a comment period is long enough to allow for sufficient PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 91509 opportunity for public input is governed by the Administrative Procedure Act (APA; 5 U.S.C. subchapter II). However, the APA also does not require specific durations for public comment periods or establish a minimum time period for public comment; rather it provides that ‘‘the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation’’ (5 U.S.C. 553(c)). For example, in Fleming Cos. v. U.S. Dept. of Agric., 322 F. Supp. 2d 744, 764 (E.D. Tex. 2004), the court held that a 30-day notice and comment period is sufficient. We believe that 60 days was sufficient to allow for public input by interested parties on these regulations, and the quantity and quality of the substantive comments the Service received bear this out. Comment: Failure to meaningfully consult with Indian tribes on issues affecting their interests can affect the tribes’ ability to effectively comment on policy changes. Consultation is still needed to provide the tribes with particularized information about how the rule revisions would affect them and the eagles around their lands. Due to the failure on the part of the Service to consult with tribes prior to proposing the regulations, issuance of the final rule should be delayed until government-to-government consultation is conducted and the tribes have an opportunity to comment following consultation. Response: In September of 2013, the Service sent all federally recognized tribes throughout the United States a letter inviting them to consult with the Service on development of these regulations. The Service then held meetings with all tribes that requested such meetings. We also held a number of regional informational webinars for tribes. In response to tribal comments on the proposed regulations asking for consultation, we reached out to each tribe that asked and met with them to gather their input and hear their concerns. Individual tribes will also have an opportunity to consult on individual permitted projects that may affect tribal interests. Comment: We ask that outstanding items that the Service is unable to address in this revision be acknowledged with a firm commitment by the Service to address the problematic elements of the program under a clearly defined schedule. Response: There are some ‘‘outstanding items’’ that the Service is likely to address through future guidance and, where necessary and E:\FR\FM\16DER4.SGM 16DER4 91510 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES appropriate, future rulemakings. Issuing a schedule for when most of these items will be addressed would be an exercise in futility for a number of reasons, including the Service’s inability to predict the size of its’ future budget and work force, what the priorities under a new Administration might be, and what new information the Service will have that may bear on how we would prioritize the outstanding items to be addressed. Preservation Standard Comment: The Service should adopt a stepwise approach to analyzing preservation under the modified preservation standard. A stepwise approach would first look at the LAP. If the LAP is healthy, then a project should be deemed to have satisfied the preservation standard and not be required to undertake compensatory mitigation. If the LAP is stressed or undeterminable, then a project could be required to consider populations at the EMU and/or throughout the geographic range of the species, in that order, to determine if and where mitigation is required. A stepwise approach would help ensure a rational relationship between a project’s impacts, if any and the required mitigation to offset for those impacts. Response: Eagles move over much larger areas than LAPs, and simply looking at the effects of a project at the local area scale would ignore impacts to migratory and dispersing eagles from outside the LAP area. Moreover, it is not feasible to collect eagle population data at the scale of the local population everywhere permits are sought, meaning the kind of analysis described here would be infeasible over much of the United States. Finally, shifting the focus of compensatory mitigation to the LAP will greatly complicate and artificially constrain implementation of mitigation efforts. Given the current challenges with implementing effective mitigation, we will not further constrain options at this time. Comment: The Service should apply the Eagle Act’s preservation standard to only the national and EMU levels for each eagle species. As long as the national and EMU populations stay stable or increase, which they currently are in the absence of [programmatic] eagle permits being issued, the Service’s goals for eagles have been met and there should be no need to look at a smaller geographical area. Response: The Service’s goals would not be met by allowing local eagle populations to significantly decline or disappear. There is no reason to believe that Congress’s intent in enacting the VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 Eagle Act and including the preservation standard was to preserve bald eagles only in pockets of their range. Moreover, current data, as presented in the Status Report, indicate that golden eagle populations at the national and EMU levels are likely not currently stable or increasing. Comment: Before proceeding with a take permit process using EMUs, the Service should strengthen the biological foundation of eagle demographic organization as a basis for assessing wind energy impacts, or take another approach altogether. Response: There is already an eagle take permitting process in place that has used both the LAP and EMU-based analyses, as described in the final environmental assessment conducted for that rulemaking action and the 2013 Eagle Conservation Plan Guidance. The proposal to shift to use of Flyways rather than Bird Conservation Regions (BCRs) for EMUs (background for which is provided in the Status Report) is based on our experience implementing the 2009 eagle regulations. Data collected under incidental take permits will allow the Service and partners to better assess the performance of the Flyway EMUs in capturing connectivity of eagle-use areas from a risk management perspective, or to determine if another configuration would be preferable. Comment: We are concerned that the preservation standard will result in the mere persistence of the two species without accounting for demographic sustainability. The mere presence of birds alone may not be ecologically sustainable unless there is a demographic preservation standard, the lack of which will potentially create population sinks. It is not apparent within the population models how the cumulative take of eagles affects their demographic preservation. The definition of ‘‘persist’’ is ‘‘stable with 2009 as the baseline.’’ We think there is room for misinterpretation of this definition. Persistence is related to local populations, and, thus, it may be difficult to link persistence to the 2009 baseline, given that this baseline was calculated at a different spatial scale (i.e., not at the level of local populations). We request further assessment or a better explanation that clarifies how this concept would apply at local populations. Response: The Service’s population objective is to maintain stable or increasing populations of both species of eagle at the EMU-scale, while at the same time ensuring the persistence of local populations. It is the EMU component of the objective that has PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 been analyzed demographically and determined to be consistent with maintaining viable populations; we show in the Status Report that take at the maximum level allowed at the LAPscale will have negative effects on local populations, though our analysis suggests local populations should still persist. Taken together, the two-tiered population objective means that across an EMU, we might well have areas where eagle take is high and local populations decline to lower equilibriums, whereas elsewhere in the EMU eagle populations are not affected substantially by authorized take to the same degree (or are increasing as a result of the application of compensatory mitigation), such that across the whole of the EMU the population, on average, is stable or increasing. Comment: The preservation standard proposed for two species not listed under the ESA generally exceeds federal ESA standards. There was an expectation that the Service would revise the preservation standard used for the two eagles as the standard provides greater protection than is required and contributes to a number of management actions (calibrating population estimates, estimating take, monitoring efforts) that detract from management needs related to numerous other species for which there are legitimate and often urgent conservation concerns. Response: The Service is charged with upholding the Eagle Act by protecting and conserving the two species it covers. In the case of bald eagles, we recognize that there are many other species experiencing significantly greater threats to their populations. However, the Eagle Act requires that we allocate resources to protect bald eagles consistent with congressional purpose stated in the enacting clause of the 1940 Eagle Protection Act: ‘‘by tradition and custom during the life of this Nation, the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom.’’ And, of course, bald eagles, as well as golden eagles, have special cultural significance to Native American tribes. Golden eagle populations appear to be well below what their carrying capacity would be were it not for high levels of anthropogenic mortality. We acknowledge that attempting to maintain current numbers of golden eagles is in part a policy choice: The Service could have chosen any reasonable interpretation of Congressional intent, as long as it was consistent with the statutory language and the legislative history behind it. For E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations example, we could have argued that the preservation standard allows for golden eagle populations to further decline to some new lower level and then preserve golden eagles at that lower population level. We also could have argued that recovery to a much higher population is warranted. However, the policy choice we made is based on what we consider, in our best scientific judgment, to be the most appropriate interpretation of the preservation standard and the overall statutory mandate to conserve and protect both eagle species, which factors in science, legislative history, and the value of golden eagles culturally, symbolically, and ecologically. We considered all these factors in defining ‘‘preservation’’ under the Eagle Act so as to protect the golden eagle populations that we have. In short, we believe that is our responsibility and our mandate. This legislative mandate to protect eagles under the Eagle Act is separate and apart from our mandate to conserve, protect, and recover species under the Endangered Species Act. The purposes and policy goals of both statutes overlap to some extent, but are also different in many ways. As such, it is not appropriate to create parallel species conservation, protection, and recovery standards under each statute or to establish an equivalent standard under the Eagle Act that provides less protection than the Endangered Species Act. Instead, our regulations under each statute protect covered species in different ways, consistent with legislative intent. Comment: The proposed rule inaccurately cites the current definition of the preservation standard as ‘‘consistent with the goal of maintaining stable or increasing breeding populations’’ (81 FR 27934, May 6, 2016, p. 27937). But the 2009 rule expressly rejected use of the word ‘‘maintaining,’’ which was in the proposed rule, explaining that it could be misapplied to constrain any authorization of take because any take of a bald or golden eagle by some degree results in a population decrease, even if short-term and inconsequential for the long-term preservation of the species. Thus, the word ‘‘maintaining’’ would render the Service unable to authorize any take (74 FR 46836, September 11, 2009, pp. 74 FR 46838–46839). Now, the Service proposes to revive the very same word it found would improperly restrict issuance of take permits in 2009. Response: We appreciate this comment, which is accurate. The wording in the 2009 regulations did not contain the word ‘‘maintaining,’’ and we are correcting it with reference to the 2009 regulations While we concede that VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 ‘‘maintaining’’ could be misinterpreted as noted in the preamble to 2009 regulations, we have built enough of a record by now that our intent should be clear: That the goal is to maintain populations over the long term. For the definition we are codifying in this final rule, we are retaining the word ‘‘maintaining’’ because it serves a constructive role in relating the two goals of the revised definition together. Comment: The addition of the term ‘‘persistence’’ to the preservation standard is confusing, as it adds another layer of definitions, with the Service stating that ‘‘persist’’ is defined as ‘‘stable with 2009 as a baseline.’’ At worst, this seems to decrease the current standard and at best, it adds unneeded complexity and confusion. We recommend that the preservation standard keep ‘‘stable or increasing’’ as the standard for both EMUs and LAPs, by deleting ‘‘persistence of’’ in the proposed definition. The revised preservation standard would read, ‘‘consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and local populations throughout the geographic range of both species.’’ Response: We have clarified in the preamble discussion of the preservation standard that we intend the 2009 baseline to apply to regional EMU populations, but not local populations. For one, the LAP analysis requirement helps us ensure the persistence of local populations, but does not measure a fixed local population. The LAP analysis calculates the authorized take within the area of an activity that may take eagles, and uses the average density of eagles in the EMU as an estimate of the number of eagles within a certain distance of the project. Therefore, there are no specific local populations that we could track as increasing or decreasing, even if we had the capacity to obtain data at that fine a scale, which we do not. Because there would be no means of measuring whether theoretically discrete local populations were stable, decreasing, or increasing, we are not adopting the commenter’s suggested modification of the standard. Retaining ‘‘persistence’’ in the definition helps to clarify our intent in that regard. Comment: The inclusion of a management goal for populations on a more localized scale is appropriate. However, the Service should use consistent terms when referring to this scale by using the term local area population (LAP) in the preservation standard: ‘‘. . . in all eagle management units and persistence of LAPs PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 91511 throughout the geographic range of both species.’’ Response: We appreciate the intent behind this recommendation, but a ‘‘LAP’’ is not a discrete population, but rather a calculation of the number of eagles within the area of a given project or activity, specifically, the number of eagles estimated to be within the area bounded by the natal dispersal distance for the respective species. See our response to the previous comment for more explanation. Comment: Despite extensive discussion of management objectives in the preamble to the proposed rule, it is unclear how the Service intends to establish its take ‘‘baseline,’’ from which permissible future take in any given EMU will be calculated. The Service fails to provide a defensible rationale for establishing a take baseline based on eagle populations as they existed in 2009, or any other point in history. Response: The approach used by the Service to establish the baseline and subsequent take limits is covered extensively in the first 35 pages of the Status Report and in the chapters of the programmatic environmental impact statement (PEIS) on bald and golden eagles. Please refer to these documents. With respect to the assertion that the Service failed to provide a rationale for its population objective, we disagree and point out that the current management objective is directly derived from and consistent with the determination made with the adoption of the initial nonpurposeful take permit regulations in 2009. We do not doubt that continental populations of both species were at times larger or smaller than they are today, but that is not a compelling reason to set a different and likely unattainable population objective. The Status Report indicates there is a high probability that meeting the objectives the Service proposed for both species will ensure healthy populations at the EMU level for the foreseeable future. Moreover, the commitment to collect and consider new population information regularly as part of the adaptive management process ensures that there will be opportunities to adjust the objectives, take rates, and take limits on a recurring basis. Comment: In the proposed rule, there is no consideration of age and sex of eagles taken under incidental take permits, nor is there regard for the time of year when the impacts will occur or of the status of the population affected. There is no consideration of carrying capacity or of how the loss of specific individuals might have affected other eagles. The proposed rule largely E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91512 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations ignores the context in which the impacts of incidental take will occur. Response: The Service agrees with this commenter that the population status, age, and (in some circumstances) the sex of eagles killed matters in terms of the scale of population impact; however, we disagree that we have ignored these factors in setting up the permitting program. With regard to spatial variation in status, the Service examined existing demographic data for regional differences in vital rates, and established EMUs and population estimates for EMUs accordingly. With regard to other factors, how or whether the probability of take under various activities varies according to eagle age and sex has not been quantified broadly for either species of eagle. Thus, the Service’s models assume that take under incidental take permits will be in proportion to the abundance of exposed age classes and sexes. The Service has established a policy to determine the age and sex of eagles taken under permits, and over time as part of the adaptive management process, and as this information accrues we will evaluate whether risk is disproportionate for any of these groups across the various activities that incidentally take eagles. The Eagle Conservation Plan Guidance (ECPG; U. S. Fish and Wildlife Service 2013) identifies age, in particular, as a factor the Service suspects influences collision risk at wind facilities. The implications of the data collected on the age and sex of eagles taken under permits will be considered by the Service in future updates to the Status Report, and, if warranted, these assessments could lead to other changes in the permit program. Comment: Proposed § 22.3 articulates the preservation standard as ‘‘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 [eagle] species.’’ It is unclear what ‘‘persistence of local populations’’ means, and the basis for including local management in a standard intended to manage the take of eagles at a national level is puzzling. At a minimum, the preservation standard articulates a management scale that is internally contradictory. Response: With respect to the relevancy of the LAP scale of eagle management, recent data from satellite tracking studies show that while both bald and golden eagles range widely, there is high philopatry (the tendency of an organism to stay in or return to a particular area) to natal, wintering, and migration stopover areas. Thus, local impacts can have far-reaching effects on VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 eagle populations. Local populations of eagles also are of great cultural and social importance. The Service received many comments from states, tribes, local governments, and environmental organizations in support of including the persistence of local eagle populations in the management objective for eagles. The Service disagrees that including this scale of management is contradictory. The LAP population size estimate is based on the eagle densities estimates in the surrounding region, and those density estimates are biologically based and derived from actual eagle count data at the finest scale available. As to the LAP area, it is based on the natal dispersal distance of each eagle species, and as such represents the most applicable area over which the effect of an individual incidental take permit should be measured. The Service believes that preservation of local eagle populations accomplishes both important biological and cultural objectives, and that the EMU-scale analysis alone is not sufficient to evaluate and account for local and cumulative effects of an incidental eagle take permit. Comment: Congress intended the Secretary to treat take authorized for scientific and religious purposes differently than take authorized for the protection of wildlife or agricultural or ‘‘other’’ purposes. Specifically, while Congress expressly conditioned the Secretary’s ability to authorize scientific/religious take to take that is ‘‘compatible with the preservation of the species,’’ Congress’s subsequent text imposes no similar condition on the Secretary’s ability to authorize take for the protection of wildlife, agricultural, or ‘‘other’’ interests, except that such take is ‘‘necessary’’ to protect the interest at issue. Accordingly, Congress did not intend to limit the Secretary’s ability to issue permits for nonscientific, non-religious take only to situations where doing so would be ‘‘compatible with the preservation of the species.’’ This conclusion is supported by the legislative history of the Eagle Act, which nowhere suggests that each take authorized for agricultural or ‘‘other’’ interests should be conditioned on compatibility with the preservation of the species. To the contrary, one of the express purposes of amending the Eagle Act in 1960 was to provide the Secretary with the authority necessary to issue eagle take permits to accommodate overriding local or commercial interests (see, e.g., Senate Report No. 87–1986, at 85,007–008, 85,011, 85,013 (1960) (explaining Congressional intent to carve out an PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 exception from the preservation standard where necessary to protect important commercial interests); House Report No. 87–1450, at 72,007, 72,010– 011 (same)). Because the Service proposes to condition all eagle take on the preservation standard that Congress intended to apply only to scientific and religious take, the proposal is inconsistent with law and vulnerable under the APA. Response: The legislative history does not support the commenter’s position. The referenced Senate Report states that ‘‘it is expected that thus the conservation purposes of the bill will be preserved, while at the same time any potential economic hardship to limited areas can be obviated.’’ Although the Committee was referring to the proposed new authority to allow a state Governor to request a depredation control order, this language supports interpreting the preservation standard to apply to the whole of 16 U.S.C. 668a, or at least to a clause other than the religious and scientific or exhibition purposes clause. The testimony also refers to both religious take and control to protect agricultural interests. In neither context does the testimony reference the preservation standard as limiting that authorization, and as such it provides no indication Congress intended that the two exceptions be treated differently. As noted by the commenter, the House Report is similar. The crux of the issue is that the statutory language authorizes the Secretary to permit the take of eagles for the protection of ‘‘other interests in any particular locality’’; it does not provide a blanket exception to the take prohibition or the Eagle Act’s civil or criminal penalties for those interests. This means the Secretary has discretion to apply reasonable conditions to that authorization. Thus, even if the commenter were correct that the preservation standard does not apply on the face of the statute, the Secretary may place restrictions on take necessary to protect the species consistent with the purposes of the statute (which references a preservation standard in at least some contexts). Comment: The Service’s population management objectives should be focused on the continued growth of all eagle populations in every extent of their current and historical geographic ranges, and any management strategy should support this tenet or be amended to meet that objective. Comment: The preservation standard should be re-phrased to make the goal of this permitting program to increase eagle populations. The Service should clarify that the relatively arbitrary 2009 E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations baseline represents a minimum ‘‘floor’’ for population management. This floor does not represent the Service’s aspirational goal but rather a threshold that will trigger additional action should populations fall below it. To this end, we recommend that the Service rephrase the preservation standard under 50 CFR 22.3 as follows: ‘‘Consistent with the goals of increasing breeding populations, or at a minimum maintain stable breeding populations.’’ Response: We are confident that the management approach we are adopting will allow bald eagle populations to continue to grow for some time in most EMUs. As we describe in the Status Report, we expect bald eagle numbers to eventually stabilize at approximately 228,000 eagles by about 2030. We believe that maintaining current numbers of golden eagles is a worthy and achievable goal for the near term. It is our hope that our management approach may also provide for eventual, modest growth in golden eagle populations to better approximate what carrying capacity would be in the absence of high levels of human-caused sources of mortality. The 1.2 to 1 compensatory mitigation ratio and the reduction of unauthorized take as it comes under the permit requirements to avoid and minimize impacts to eagles are the primary regulatory mechanisms by which these regulations could provide that outcome in the long term. As the second commenter states, the 2009 baseline does indeed represent a minimum ‘‘floor’’ for population management. It is not the Service’s aspirational goal. It is a threshold below which our management goal for eagles would not be met. With regard to the specific recommendation that the standard should read ‘‘consistent with the goals of increasing breeding populations, or at a minimum maintain stable breeding populations . . . ,’’ we do not agree that it would be good public policy to stipulate a goal of increasing a species’ population size without also being specific as to why, by how much, and where, all factors for which the Service lacks any specific objective criteria. The Status Report indicates there is a high probability that meeting the objectives the Service proposed for both species will ensure healthy populations at the EMU level for the foreseeable future. As noted above, we believe bald eagle populations will continue to increase despite some additional authorized take. At present, the Service has not been presented with evidence that suggests stable populations of golden eagles would not satisfy both reasonable biological and societal needs. VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 Comment: The Service proposes to add the clause ‘‘and the persistence of local populations, throughout the geographic range of both species’’ to the definition of the preservation standard. This contradicts and undermines the assumptions of the Service’s biological opinions issued in support of habitat conservation plans (HCPs) and ESA incidental take permits that cover golden eagles. In approving those HCPs, the Service issued multiple biological opinions concluding that local populations of golden eagles were not critical for the long-term survival of the species. Response: The ESA and the Eagle Act have different conservation standards and purposes. While the ESA has as its bottom line that permitted take must not more than negligibly contribute to the extirpation of a species, the Service interprets the Eagle Act’s preservation standard, even prior to the amendments to our regulations being made by this final rule, as intended to maintain sustainable population levels throughout the range of each species. We note that at the time that the HCPs and ESA take permits covering golden eagles were developed, the permits conferred no authorization to take golden eagles under the Eagle Act, but rather included statements that the Service would exercise its enforcement discretion so long as the permittees remained in compliance with the incidental take permits’ terms and conditions specific to eagles. Since then, because of revisions we made to our regulations in 2008, ESA incidental take permits that cover eagles, if conditioned in accordance with Eagle Act standards, also convey take authorization under the Eagle Act. In that regulation, we stated the following with respect to existing incidental take permits that included golden eagles as a covered species: ‘‘The statutory and regulatory criteria for issuing those ESA authorizations included minimization, mitigation, or other conservation measures that also satisfied the statutory mandate under [the] Eagle Act that authorized take must be compatible with the preservation of the bald or golden eagle.’’ 73 FR 29,075 (May 20, 2008). This means the existing ESA golden eagle incidental take permits are ‘‘grandfathered’’ by the 2008 regulation revision and as such are not contradicted or undermined by these final regulations. Avoidance and Minimization Comment: The proposed removal of the ‘‘unavoidable standard’’ and replacement with a standard of practicability is too lenient and leaves PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 91513 unacceptable room for subjective interpretation. Response: The Service views the requirement that programmatic permittees reduce take to the point where any take that occurs is completely unavoidable as just as subjective in practice as a standard requiring reduction of take to the maximum degree practicable. In addition, the practicability standard is clearer, more reasonable, and realistic. Comment: The Service should provide more details regarding how the various considerations in the definition of ‘‘practicable’’ will be accounted for, weighted, and implemented in an objective manner. Response: The Service’s definition of ‘‘practicable’’ in this rule mirrors the definition of that term in Service mitigation policy, as well as other federal agency mitigation policies and regulations. The Service also intends to implement the consideration of practicability with regard to mitigation measures in a manner consistent with these mitigation policies and regulations. The consideration of what is practicable is complex and contextdependent and is described in more detail in the preamble to this rulemaking above. Further details about how practicable considerations are implemented may be detailed in future guidance. Comment: Under the proposed rule, 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. The Service should not impose such measures on projects unless outlined in the permit conditions, or if take has exceeded anticipated levels. Instead, the Service should include a ‘‘No Surprises’’ concept in the final rule that would protect permittees from unforeseen circumstances beyond a permittee’s control. Response: We modified the language covering 5-year reviews for this final rule such that additional conservation measures to be implemented based on the review will be limited to those described in the adaptive management plan for the permit, unless the take exceeds the authorized take levels or the permittee is otherwise out of compliance with the permit conditions. The final rule also includes the following language: ‘‘However, with consent of the permittee, the Service may make additional changes to a permit, including additional or modified appropriate and practicable avoidance and/or minimization measures shown to be effective in E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91514 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations reducing risk to eagles’’ (50 CFR 22.26(c)(7)(iv)(D)). Comment: It is inappropriate to consider cost in the definition of ‘‘practicable.’’ The Service has the legal authority to require permittees who take eagles to comply with the best available scientifically defensible measures to limit take regardless of cost. Response: The previous definition of practicable included considering cost, as do most definitions of the term in federal policy. If an applicant cannot afford a mitigation measure, or if the cost of a mitigation measure renders a commercial project financially infeasible, then the mitigation measure is not capable of being done by that applicant, and is not practicable. However, the burden of proof is on the applicant to demonstrate a mitigation measure is not practicable. Comment: The Service proposes to revise the definition of the term ‘‘practicable.’’ However, the new definition seems to provide ample room for debate and interpretation with project proponents. The Service should define mechanisms to ensure that projects meet this definition and that proponents truly are avoiding take to the greatest extent practicable. Response: We hope to develop future guidance to ensure a consistent, objective approach is taken when evaluating the practicability of mitigation measures. In any case, the previous definition of the term practicable has already provided plenty of room for debate and interpretation. We do not expect our new definition to change that dynamic and that was not our intent. Comment: The Service’s proposed definition of practicable is inconsistent with the Service’s obligation and authority to permit eagle take only when it is ‘‘compatible with the preservation of the bald eagle or the golden eagle.’’ Response: Both standards apply. If there are no practicable measures or compensatory mitigation actions that a project proponent can undertake to ensure compatibility with the preservation of eagles, the Service will not issue an incidental eagle take permit. Comment: The Service should add ‘‘project economics and location’’ to the definition of ‘‘practicable’’ at proposed 50 CFR 22.3 to harmonize the language of the regulations with the intended purpose to establish a workable ‘‘practicability’’ standard. Response: We do not agree that the addition of ‘‘project economics and location’’ is appropriate. Project economics implies that permits are always issued for commercial activities, VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 but many eagle incidental take permits are issued to homeowners and government agencies. The addition of location is not appropriate because whether a project can be sited elsewhere may be part of the consideration of what is practicable. Comment: Courts have noted that the Service’s definition of practicable ‘‘looks to whether the mitigation is rationally related to the level of take under the plan.’’ Key language from the existing regulations recognized this rational relationship requirement: ‘‘Practicable means capable of being done after taking into consideration, relative to the magnitude of the impacts to eagles, the following three things: The cost of remedy compared to proponent resources; existing technology; and logistics in light of overall project purposes.’’ The Service should ensure that this rational relationship requirement carries over into the new definition of practicable. Response: We agree that the determination of what is practicable must include consideration of the magnitude of the impacts of the activity on eagles. The regulations capture this consideration at 50 CFR 22.26(e)(5) addressing the factors the Service must consider in determining whether to issue a permit, which reads: ‘‘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.’’ Comment: In the final rule, the Service should provide a more detailed description of elements of an adaptive management program suitable for protection of eagles, to include: Details on the process for development of the plan; opportunities for regulated entities to participate in discussions about adding or removing mitigation measures; mitigation measures that the Service identifies as suitable for the objective of reduced eagle disturbance or mortality; and at 5-year reviews, the process for determining which mitigation measures will be included for a subsequent 5-year period. Response: The elements cited by the commenter as needing more detailed description (e.g., suitable mitigation measures, the process for determining when mitigation measures will be applied) will vary significantly depending on the type of activity that is being permitted and how it affects eagles. For example, mitigation measures and the trigger points for implementing them are likely to be very different for mining operations versus wind energy facilities. The ECPG contains a detailed description of the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 process the Service is using for adaptive management under incidental take permits at wind facilities, and we refer this commenter to that document for an example of how adaptive management will be implemented under permits for wind energy facilities. Comment: The Service has apparently not heeded any of the elements of the precautionary principle or the advice of the National Research Council when making decisions about rare or precious resources in the face of high uncertainty. Response: The entire eagle incidental take program has been built around explicitly accounting for uncertainty and then being clear about how that uncertainty is addressed in decisions. Adaptive management is a process of adaptive learning, whereby: (1) Predictions are made regarding anticipated effects of an activity; (2) data regarding the outcomes of the activity are collected; (3) the predictions are updated to reflect the actual outcomes of the activity; and (4) the updated predictions are used to change the activity, either in the future at the same site or at other places where the same activity is being contemplated. The Service has described its adaptive management framework for eagle incidental take permits in the ECPG (Appendix A), and in the preamble to this final rule. The overall framework is intended to account for, and over time to reduce, uncertainty in the effects of wind facility siting, design, and operations on eagles. More broadly than for just wind energy, the adaptive management process is also intended to address uncertainty in compensatory mitigation and the effects of established take rates on eagles. This uncertainty is reduced over time by using information collect on the actual outcomes of the activity to update the predictive models used initially to estimate those effects; over time, the accuracy and precision of the predictive models is improved through these updates. We describe how the risk posed by uncertainty is addressed in the response to other comments, but we reiterate here that in all cases the Service has adopted approaches that are protective of eagles. Comment: Permittees should also be required to conduct research and analysis to test methods to reduce lethal take during their permit life. There should be an expectation that all projects will be required to reduce their lethal takes over time. Response: The adaptive management framework outlined by the Service includes a requirement that permittees monitor eagle take and, on a case-bycase basis, other factors associated with E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations that take under their permits. The Service will use this information as part of the adaptive management process outlined in the ECPG to determine or add to existing knowledge of factors associated with eagle mortality under different activities and to evaluate the effectiveness of different avoidance and minimization measures. Through monitoring, 5-year reviews, and the adaptive management process, our goal is to reduce take over time. Comment: A coordinated research program should be instituted to develop new and effective mitigation measures for wind energy facilities. Response: We agree additional research would benefit eagle conservation and the Service’s permitting program. The permit program is designed to collect relevant data that can be used to evaluate the effectiveness of minimization, avoidance, and mitigation measures. This adaptive management approach allows for the incorporation of new information and practices over time. This approach is described in detail for eagle take permits for wind facilities in the ECPG. Comment: The Service should retain the requirement for applying advance conservation measures (ACPs) to mitigate eagle take. Experimental ACPs are appropriate where established ACPs are not available. Response: The Service eliminated ACPs from the regulations due to confusion about the standards by which ACPs were to be developed and what it means to reduce take to the point where it is unavoidable. We believe the new language is more consistent with Service policy and is clearer. Applicants must still implement all practicable avoidance and minimization strategies for their activities, and, conditioned on terms and conditions set in the initial permit, testing of experimental measures to reduce eagle take as, for example, described for wind energy facilities in the ECPG as part of the adaptive management process. Comment: Application of minimization strategies should be on a project-by-project basis to determine whether the measure is practicable for that project. Response: All practicable avoidance and minimization measures demonstrated to reduce take levels will be required. There are many considerations in determining whether mitigation measures are practicable for a particular project, including the magnitude of the impact to eagles. For example, if a project poses a relatively low risk of eagle take, imposing expensive monitoring and curtailment VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 measures is not commensurate with the risk, whereas this strategy may be appropriate at a high risk site. Duration and 5-Year Reviews Comment: The proposed change from 5-year permits to 30-year permits has the potential to decrease golden eagle population numbers in the Southwest, making it more difficult for tribes who rely on the ceremonial and religious take of golden eagles (as they have for centuries), to secure their own permits for take under the Eagle Act. Even with the prioritization given to tribal take permits, a tribe’s ability to engage in longstanding religious and traditional take of golden eagles may nevertheless be constrained if golden eagles are so impacted by wind energy on a local or regional basis as to become unavailable for this purpose. Response: The regulations are designed not only to protect eagles but, in the case of golden eagles, to improve their condition. The management approach we are adopting through this rulemaking is risk-averse with respect to estimating impacts on eagles. Population sizes, sustainable take rates, and, for wind facility permits, eagle fatality estimates for individual projects are all based on scientifically peerreviewed models that are designed to provide data that allow the Service to explicitly select the level of risk with respect to being more versus less protective of eagles. For each aspect of the management and permitting process, we are using values for decision-making that shift the risk in an 80:20 ratio towards being protective of eagles. Thus, the actual eagle population size in each EMU and the true sustainable take rate are both highly likely (80% likely) to be larger than the values used by the Service, so that when they are multiplied together to get the take limit, that value is even more unlikely to exceed the actual sustainable take limit for the EMU. Similarly, the eagle fatality estimates for individual wind projects are unlikely to underestimate the actual take rates, and as a result, authorized take over all wind projects is very unlikely to exceed the EMU take limits. While improvements in the precision of all of these estimates through adaptive management should decrease uncertainty and thus shrink the magnitude of the difference between the expected fatality rate and the permitted take limit over time, as a matter of policy, the difference will always be in favor of protection of eagles. Furthermore, all golden eagle take authorized under this permit regulation will require compensatory mitigation at a 1.2 to 1 ratio, meaning that for every PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 91515 five incidental takes of golden eagles, six golden eagles will be protected that otherwise would have been lost. Comment: The final rule should clarify that its increased take limits and permit durations apply to all industries. The Service should clarify that permits will be issued to all applicants on an equal basis and that the number of eagle takes authorized and the term of the permit will not depend on the applicant’s industry. Response: The increased take limits apply equally to all industry types. The increased permit duration also applies to all types of entities. We will issue permits to all applicants on an equal basis. The number of eagle takes authorized and the term of the permit will depend on the specifics of the individual project and not the applicant’s industry. Comment: While the short duration may be a deterrent to industries to applying for permits and participating in a regulation scheme, a 600% increase in duration is too large of a leap. The Service should consider a 15-year initial permit duration, with a renewal option every 5 years. This approach balances the need for a longer, more realistic permitting procedure with the need to closely regulate the potential for loss of life and nests of these eagles, which remain protected species. Comment: Given the rapid changes due to climate change in the region, especially related to water regimens and their impact on habitat and eagle prey populations, it would seem prudent to limit the maximum permit duration to 5 years in order to more rapidly respond to changes in local eagle populations and productivity wrought by climate change. A more conservative, shorterduration permit than 30 years provides opportunities for real-time incorporation of rapidly evolving scientific knowledge, especially regarding population estimates, take thresholds and caps, and evaluation of unforeseen impacts and changes in the population dynamics of eagles. Comment: The rule should be clear that permit duration will be tiered to certainty of risk and expected impacts to eagles, both of which remain extremely uncertain. Response: These final regulations establish a maximum permit duration of 30 years. Permits valid for longer than 5 years can be of any duration between 5 years and 30 years. The Service will consider the degree of uncertainty as to the effects of the permitted activity, sitespecific factors, and other information to determine appropriate durations for individual permits. E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91516 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Comment: The 5-year reviews of longterm permits are unnecessary, especially for projects for which the adaptive management strategy can respond to actual events. Every project that receives a permit under this rule will provide annual reports to the Service, providing the Service the opportunity to regularly review the specific eagle mortality, avoidance, minimization, adaptive management, and mitigation measures addressed in a permit. Formal review periods short of the permit term would invalidate the protections and intent of the 30-year permit. Comment: While the 5-year review periods are appropriate, they would not be necessary for all projects, particularly if a fatality prediction is low. Any indepth review should be reserved for extreme cases where data prove continued operation under current permit conditions would result in population-level impacts. Comment: A wind project 20- to 30year eagle permit with substantive reviews every 5 years is very difficult to finance and operate commercially. Opening up the eagle permit for substantive reviews every 5 years is a significant financial uncertainty, burdensome to already overly committed Service staff, and a cost for applicants that presents a significant disincentive to seek a permit. Response: The 5-year review is a reasonable and justified provision that appropriately balances the Service’s responsibility to ensure the preservation of bald and golden eagles, while also creating benefits to industries seeking long-term permits. In response to the comment that the reviews are unnecessary, particularly for projects for which the adaptive management strategy can respond to actual events, the 5-year review is the mechanism by which we determine whether the adaptive management strategy is able to respond to actual events. Annual reports are important, but eagle presence and exposure to permitted activities varies from year to year, such that it would be imprudent (not to mention impractical) for the Service to react annually to those variable events. We anticipate that the 5-year reviews will typically benefit permittees because, under the conservative management approach we are taking, the authorized take will usually be higher than the actual take. For golden eagles, this means that excess compensatory mitigation can be credited to the permittee at that point and the excess ‘‘rolled’’ into the next 5year period. Without the 5-year review, most long-term permittees will contribute more compensatory VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 mitigation than is needed to meet the compensatory mitigation ratio of 1.2 to 1. The typically lower take rate will also mean the Service can adjust the authorized take to a lower amount for permits for both species of eagles, and adjust debits to the EMU and LAP take limits appropriately. Additionally, the 5-year review may demonstrate that some conservation measures or other permit conditions may not be effective or necessary, allowing the Service to reduce or eliminate those requirements. Even for permits with low fatality predictions, we believe it would be remiss not to review whether eagle take is within the authorized level, and whether there are elements of the adaptive management strategy that should be implemented. That a longterm permit with substantive reviews every 5 years might in some cases be ‘‘very difficult to finance and operate commercially’’ is a factor that project proponents will need to consider when siting projects in eagle habitat. In response to concerns that shorterterm permits are necessary to protect eagles from effects of climate change or other factors that could affect eagle populations, we agree that under the most ideal circumstances for eagles, owners and operators of projects in eagle habitat could be persuaded or, if necessary, be required to revisit and modify any aspect of their operations to benefit eagles. That ideal is simply not realistic, whether the activity is permitted under a 5-, 10-, or 30-year permit. For good or for worse, much of the physical infrastructure that humans establish on the landscape is semipermanent in nature, and projects are as unlikely to be significantly altered at the end of a 5-year eagle take permit term as they are at the 5-year point of a 30year permit. The situation up until the time of this final rule being issued is that the Service has issued only four permits for ongoing take that may occur over decades. We expect many more projects to seek permits with longer durations because the longer duration is the single biggest change project proponents and operators have attested they need for this permit program to be workable for longer-term activities. Compared to a scenario where activities that take eagles do so with little to no avoidance and minimization measures to protect eagles, and no compensatory mitigation, we anticipate that long-term permits with adaptive management strategies and 5-year reviews will be beneficial to eagle populations. Comment: It may be justifiable for projects that exceed the take authorization specified in the permit to be required to implement additional PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 measures and seek a permit amendment. However, the permit cannot be reopened for reasons unrelated to the project or outside the permittee’s control. These reasons may include unanticipated detrimental changes in the status of the local population due to factors such as non-permitted take (e.g., shooting, poisoning); disease; or shifting/declining ranges due to climate change, fire, or other environmental factors. The rule must be clear that permittees would not be responsible for implementing additional mitigation or minimization measures due to these circumstances. At a minimum, the rule should establish long-term adaptive management cost caps that can be relied on to ensure project viability. Comment: Given that eagle populations can change significantly over 30 years, the final rule should detail an adaptive management approach that ensures the Service retains the ability to reduce take if eagle populations are negatively influenced during the life of the permit. Comment: The final rule should incorporate clarifying language indicating that the Service retains the ability to revoke a permit for continued excessive take, and it should more clearly define a process by which permits may be revoked. Response: This final rule incorporates modified language to address the adaptive management provisions and the types of actions the Service may take in 5-year reviews. Specifically, more emphasis will be placed on building in a robust suite of adaptive management measures upfront in the permit. If a permittee is in compliance with permit terms and the authorized take under the permit is not exceeded, no other actions will be required. With consent of the permittee, the Service may make additional changes to a permit, including additional or modified, appropriate and practicable avoidance and/or minimization measures that are likely to reduce risk to eagles. If the permittee agrees to undertake such additional measures, appropriate adjustments will be made in fatality predictions, take estimates, and compensatory mitigation. If authorized take is exceeded, that will generally trigger modifications by the Service. However, whether modifications to permit terms are required will depend on the circumstances. Because the Service will set take authorizations conservatively, we expect actual take to be lower than what was authorized 80% of the time and higher than what was authorized only 20% of the time, at least during the first 5 years, prior to predicted take E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations being adjusted based on the observed levels of take in the first 5 years. Because 20% of permitted projects are expected to exceed the authorized take levels, the appropriate response when that occurs depends on the circumstances, including how much actual take exceeded authorized take, and what other factors, if any, may have affected the take level. Permit revocation criteria that apply to all Service permits are found at 50 CFR 13.28. Section 13.28(a)(5) provides that a permit may be revoked if ‘‘the population(s) of the wildlife or plant that is the subject of the permit declines to the extent that continuation of the permitted activity would be detrimental to maintenance or recovery of the affected population.’’ Prior to any permit revocation under such conditions, the Service is likely to request that the permittee adopt additional measures to avoid and minimize take of eagles rather than be subject to permit revocation. Comment: The idea of a periodic review of a permit for effectiveness has merit, but is a 5-year period for the 30year permit the best timeframe? If in the first year or two the actual documented take significantly exceeds the predicted take, should action not be initiated sooner? Or, if actual take is at predicted levels, or lower than predicted, would that create the basis for the permit to move to a 10-year mandatory review period? The use of an arbitrary timeframe versus actual impacts as the trigger for a review raises questions. Comment: If the final rule retains the provision for long-term permits, they should be evaluated at shorter intervals than 5 years. Permits should be automatically reviewed if the number of take exceeds the average annual ‘‘take’’ (e.g., a 3-year permit that allots a total take of 10 ‘‘units’’ should be reviewed if there are more than 4 ‘‘units’’ of take in that year). Comment: The statement that the Service will evaluate each long-term permit at no more than 5-year intervals presents ambiguity that may result in inconsistent administration of the program. The statement implies that the evaluation interval could be conducted at less than 5 years. If a definitive timeframe cannot be established, the final rule should describe when evaluations would occur at less than a 5-year interval. Response: The rationale for the 5-year timeframe for the periodic review is as follows. The observed level of take is likely to vary from year to year. For example, in the first 2 years, there may be no take, but in the third year, perhaps due to environmental factors, estimated VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 take (based on observed levels of take using approved protocols for monitoring, searching, and estimating take) is three eagles. If no take occurs in years four and five, then take over the 5-year period totals three eagles, which gives the Service and the permittee a reasonable idea of what the average level of take is likely to be. If it happened that three eagles were taken the first year, but none in the next 4 years, the average would be the same: Three eagles over a 5-year period, but it might have appeared after the first year that annual take would be higher because year one had a much higher level of take than the four subsequent years. For that reason, we are unlikely to revisit the permit terms within the 5year period unless the level of take exceeds anticipated and authorized take levels for the 5-year period. Comment: The final rule should describe, at a minimum: (1) The consequences to, and expectations for, the applicant of unexpected take; (2) the specific additional mitigation measures that may be required; and (3) any relevant ‘‘triggers,’’ such as when permits will be reviewed. Response: In general, as noted in our response to the previous comments, the Service will conduct permit reviews for long-term permits every 5 years. As noted above, if authorized take levels for the 5-year period are exceeded, we may need to revisit the permit terms and conditions sooner than in year 5. Individual permits will have different adaptive management measures tailored for the type of activity and site-specific factors spelled out, including when the permittee would need to implement them. Comment: The Service must adopt a process by which the public and concerned conservation organizations will be routinely involved in the ‘‘internal’’ 5-year reviews if a 30-year permit is approved. Otherwise, to adhere to the NEPA provisions for public involvement in the permitting process, the Service will need to continue with a 5-year permitting system. Response: There is not a requirement under NEPA to involve the public in a permit renewal process or a 5-year review process unless there is a need to supplement the associated NEPA analysis underpinning the original permit decision. Public involvement would be limited to reviewing a draft supplemental EA/EIS and would not be part of Service’s regulatory review procedure set out for the permit itself, whether the action is permit renewal for a 5-year permit or a permit evaluation conducted every 5 years. Accordingly, PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 91517 there is no difference in public involvement through NEPA between a 5-year review and a 5-year renewal. Comment: The internal review process could eliminate or significantly curtail public and state agency participation, input, and oversight after the permit is initially granted. Language should be included in the rule that expressly allows for public/state agency mortality and other data sharing, input, and review at each 5-year interval. Response: We will coordinate with states and other government agencies (e.g., federal and tribal) that have regulatory oversight over the permitted activity and which could be affected by changes to the federal authorization, when conducting the 5-year reviews. Involving the public would entail public hearings or notice and comment in the Federal Register, greatly increasing Service workload and costs, resulting in delays, and generally making the 5-year review unworkable. Comment: The Service should notify all affected tribes when it is conducting a 5-year review of a permit. Upon notice, affected tribes should be invited to consult or provide input on the permit, including a consideration of whether eagle takes under the permit necessitate permit modification. Response: The same factors would trigger consultation at 5-year reviews as for the initial permit issuance, i.e., whether the action (permit issuance or 5-year review) may affect particular tribes. If, at the beginning of the 5-year review based on information supplied by the permittee, we determine it is not likely any changes will need to be made to the permit, or that any required changes are unlikely to affect particular tribes, then consultation would not be warranted. There may be unusual circumstances when consultation would be appropriate on a 5-year review for a project when changes may affect tribal interests, even when the activity did not need consultation in the first place when initially permitted. Comment: The Service should commit to conduct NEPA reviews at the time it considers issuance of an eagle permit, not at additional 5-year intervals over the life of the permit. Response: Some level of NEPA review (EIS, EA, or categorical exclusion) is always required when a federal agency issues a permit to authorize any otherwise-prohibited activity. We would only need to conduct additional NEPA analysis at the 5-year review stage if the scope or conditions of the authorization substantially change to the point where supplemental NEPA analysis would be required. E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91518 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Comment: The Service has failed to outline how the results of its 5-year review process will be shared with the public at large or interested tribes or how the review process will trigger additional obligations to engage in informed and meaningful tribal consultation about the project under existing laws and policy, including section 106 of the National Historic Preservation Act (NHPA). Response: The Service will continue to make mortality information from the annual reports that each permittee is required to submit under § 22.26(c)(3) available to the public. Neither the 5year review process nor the original permit-issuance process contains a public-notice requirement. Public participation in the initial permit issuance process is currently, and will remain, limited to any NEPA analysis that is required to accompany permit issuance, if appropriate (for example, public participation would be required for an EIS and is discretionary, consistent with Council on Environmental Quality (CEQ) and Department of the Interior (DOI) NEPA regulations, for an EA; see 40 CFR parts 1500–1508 and 43 CFR part 46, respectively). Similarly, public participation in the 5-year-review process will be limited to any NEPA compliance necessary at that time, which would most likely take the form of supplementation of the original NEPA analysis accompanying permit issuance. NHPA compliance is unlikely to be triggered at the 5-year-review stage unless the Service determines it is necessary to supplement the original permit-issuance NEPA analysis. The Service will continue to engage and consult with federally recognized tribes if the 5-year-review process reveals significant changes in the effects of the permitted activity on eagles or leads to any changes to the permit that may affect those tribes. Comment: A 5-year permit term does not pose any unreasonable hardship to permittees or to the Service. The permittee has the opportunity to renew the permit at the end of the 5-year term, and there is no reason to believe that a permittee who is compliant with applicable law and the permit conditions will be denied renewal. For permittees whose projects are not in compliance with their permit or applicable law, the Service will retain its leverage in ensuring compliance if it has the opportunity to not renew the permit. Once a permit is issued, a permittee will vigorously resist any new measures being imposed on its permit, will argue that additional measures are not worth the cost, and will likely VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 challenge imposition of costly new measures in court rather than complying with them at the outset. At minimum, the permittee will have significantly more (and the Service less) leverage if the Service is in the position of adding new conditions to an existing permit as opposed to a permit renewal context. Response: We agree that a 5-year permit was not ‘‘an unreasonable hardship’’ to permittees and also that there is no reason to believe that a permittee who is compliant with applicable law and the permit conditions will be denied renewal. However, many potential applicants had a different perspective that appears to have dissuaded them from obtaining permit coverage. And, we do not agree with the commenter that we lose leverage under longer-term permits to ensure compliance with permit terms. We also do not agree that long-term permittees are more likely to resist new measures than permittees needing to renew permits for ongoing operations. If anything, long-term permittees would be less likely to resist changes imposed at the 5-year stage because the additional measures will, in many cases, already be part of the adaptive management terms and conditions of long-term permits. Comment: The Service’s commitment to engage in a 5-year review process offers little comfort, since little can be done to avoid any unanticipated level of take of eagles after the facility is developed. The Service’s assertion that it will ‘‘always retain the ability to suspend and/or revoke the permit’’ (presumably should it find that the activity is not compatible with the preservation of the eagle) is not convincing. Practical, financial, and political constraints will make it virtually impossible for the Service to live up to this assertion. Response: The statement that ‘‘little can be done to avoid any unanticipated level of take of eagles after the facility is developed’’ is not a good argument for a 5-year permit over a permit of longer duration. How would the Service’s failure to renew a 5-year permit for a long-term project have greater effect than our ability to continue to work with longer-term permittees to adapt avoidance and minimization measures and ensure appropriate compensatory mitigation is carried out? The statement that practical, financial, and political constraints will make it virtually impossible for the Service to suspend or revoke long-term permits is purely speculative. We acknowledge that suspension and revocation are options of last resort and that we would prefer, and intend, to work with permittees to PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 rectify compliance issues prior to taking those steps. Such an approach is not less protective of eagles. Comment: The proposal to extend permit terms to 30 years fails to recognize that subsequent administrations of federal or state governments might pass new laws or regulations within the next 30 years that strengthen protections applicable to eagles or wildlife. In such case, permittees will likely try to resist compliance with new protections by arguing that they have ‘‘grandfathered’’ rights under their permits. Response: We cannot predict future laws or regulations that may strengthen (or reduce) protections for bald and golden eagles, and we do not have the resources to monitor every new change in laws and regulations at the state, tribal, and local level. We will continue to rely on our working relationships with state, tribal, and local wildlife agencies to coordinate management and protection of bald and golden eagle populations. We do not enforce or interpret non-federal laws and will continue to rely on state, tribal, and local government entities to notify us of any potential violations for projects authorized under eagle incidental take permits. If we receive notice of a potential violation, we will work with the permittee and the relevant state, tribal, or local government entity with authority to enforce the applicable law or regulation to ensure the authorized project complies with the relevant law or regulation. This may require modification of permit conditions. Comment: The Service continues to rely on the notion that the 5-year maximum permit duration is the ‘‘primary factor’’ discouraging permit applications, which is based on anecdotal information. Other sciencebased factors, such as lack of mitigation options and effective risk analysis, have significantly precluded eagle permit issuance. Response: We agree that the 5-year maximum permit duration has not been the only factor discouraging applications from the industrial sector. The lack of compensatory mitigation options has also been the subject of criticism from industry, and we are working with partners to develop metrics that would allow us to be confident that methods other than power line retrofits can be relied on to appropriately offset authorized take of eagles. We are also taking steps to establish third-party mitigation funds and/or banks to facilitate compensatory mitigation requirements. Some potential applicants may be dissatisfied by the requirement for compensatory E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations mitigation for every authorized take of a golden eagle, but that requirement is ‘‘science-based.’’ It also stems from the statutory mandate that authorized take be compatible with the preservation of eagles. Comment: During the 5-year reviews, the Service should consider using the ‘‘evidence of absence’’ model, which is designed to tell how likely it is that take has not exceeded a certain number (with a certain degree of confidence). The model can be used to predict take and then a check-in may occur every few years to ensure a permittee does not go over its take limit. Response: The Service agrees with the commenter that robust estimators such as the ‘‘evidence of absence estimator’’ (Huso et al. 2015) should be used to obtain unbiased estimates of mortality from systematic searches for animal remains. Such estimators should account for the proportion of animals killed that fall into the search area (which should also consider the spatial distribution of killed animal remains), the likelihood animal remains that fall into the search area will persist long enough to have an opportunity to be detected during a scheduled search, and the probability that a searcher will detect the remains during a search, and should include measures of uncertainty. However, there are a variety of robust estimators in the literature (see KornerNievergelt et al. 2015 for discussion of several), and the appropriate estimator for a particular site or survey may vary depending on details specific to the objectives and survey design; therefore, estimators should include the elements discussed above and should be considered on a case-by-case basis. The Service uses a Bayesian model to predict potential take of eagles at proposed land-based wind facilities based on information collected before a facility is constructed and then incorporates data from systematic searches for eagle remains to update the model and predictions and evaluate take relative to what is authorized by a permit (see the ECPG, Appendix D, for additional details). Comment: Rather than issuing permits for up to 30 years, the Service should consider automatic renewal of 5-year permits in limited situations; for example, if impacts are less than expected; if eagle take has not occurred; or if eagle minutes are less than expected, the LAP is increasing, and eagle populations are stable. Response: Automatic or automated renewal under the described circumstances would be challenging, since some review would always be needed to ascertain whether these VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 conditions are met. We agree that permit renewal should be relatively straightforward under these circumstances and we anticipate that being the case. Definitions Comment: It seems pointless to try to make a distinction between ‘‘purposeful’’ and ‘‘incidental’’ take. Response: While the impacts on eagles may be the same, we disagree that it is pointless to distinguish between purposeful and incidental take of eagles for the purposes of regulations. Purposeful take is generally very limited and different in practice than incidental take and requires different regulations to properly and efficiently regulate the various activities that fall within those categories. Eagle Permit Fees Comment: The proposed fee is very high, including the proposed administration fee for long-term permits. High fee structures may discourage take permit applications. To the extent that the Service maintains this fee structure in the final rule, permit fees should be committed exclusively to the processing and administration of eagle take permits to expedite review of applications and permit processing. Response: The purpose of establishing such a fee structure is to provide capacity to process permits. Office of Management and Budget (OMB) Circular No. A–25 requires federal agencies to recoup the costs of ‘‘special services’’ that provide benefits to identifiable recipients. Permits are special services that authorize recipients to engage in activities that are otherwise prohibited. Our ability to provide effectively these special services is dependent upon either general appropriations, which are needed for other agency functions, or on user fees. Accordingly, the permit fees associated with eagles permits are intended to cover the costs the Service incurs processing the average permit. Nonetheless, in response to comments on the proposed rule, these final regulations adopt an $8,000 administration fee for long-term permits, rather than the proposed $15,000 fee. Comment: For small independent energy producers to enter the market, permit cost should be scaled properly, based, for example, on number of turbines, electric output, or risk to the local eagle population. Response: It is not practicable for the Service to assess and charge a unique fee per project seeking take PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 91519 authorization. As described in the fee section of this rule, the application fee for long-term permits was derived from average costs associated with processing these complex permits. Monitoring and mitigation costs, however, are scaled to the project, and would be expected to be lower for smaller-scale projects. The Service intends to involve the public in developing additional guidance for projects that pose a low risk of eagle take, which may be particularly relevant for small projects. Finally, in response to comments on the proposed rule, this final regulation adopts an $8,000 administration fee for long-term permits, rather than the proposed $15,000 fee. Comment: Increased fees will likely address some of the required costs to implement a revised program, but the Service is already greatly understaffed. The preferred alternative will be no more efficient or effective, nor will wait times for permits be improved, in the absence of sufficient and appropriate funding. Response: We cannot collect fees from the public to cover the costs of agency functions that are covered through funds appropriated by Congress. We can and do assess fees to cover the costs of special services that accrue only to certain members of the public, such as permit applicants and permittees. Comment: The proposed rule is not clear whether the fee structure changes for non-purposeful/incidental take (§ 22.26) and nest removal (§ 22.27) permit applications will apply to government entities, including municipalities, tribes, and state and federal agencies, or if these entities will remain exempt. Response: Regulations at 50 CFR 13.11(d)(3), which apply to these permits, waive the permit application fee for any federal, tribal, state, or local government agency or to any individual or institution acting on behalf of such agency. Comment: The application fee of $500 for a residential incidental take permit, plus a second $500 fee for an eagle nest take permit, seems prohibitively high for the average homeowner. Response: The $500 application processing fees for the incidental take permit and the eagle nest take permit have been in place since 2009, and are not changing for homeowner applications. Also, we note that it is very rare that anyone needs both permits. Permits to remove nests cover associated disturbance to the eagles, and even the need for that is rare, since most nest take permits are for removal of alternate nests. E:\FR\FM\16DER4.SGM 16DER4 91520 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES Comment: The proposed permit fees and other costs associated with implementing required elements of an eagle permit drive up costs and provide little benefit to eagles. Response: We disagree that these regulations provide little benefit to eagles. These regulations require permittees to avoid and minimize impacts to eagles to the maximum extent practicable. Such measures will greatly benefit eagles. Fatality Prediction Model Comment: The proposed rule implies that survey protocols the Service has developed for the wind industry will be applied to all activities that may require incidental take permits. This is inefficient and ignores that other protocols might be more suited to other activities. Response: The Service’s proposal would only require use of industry- or activity-specific protocols when they exist. At this point, the only such standards are those included in this final rule for estimating eagle take at wind facilities. The Service plans to develop standards for other industries in the future, and will seek industry input in the development of those protocols. Comment: The collision risk model (CRM) recommended by the Service for eagle fatality estimation at wind projects relies on a sample size that is too small and data that are too outdated to provide reliable predictions for either golden or bald eagles. Research recently published in a peer-reviewed scientific journal provides new collision probability rate estimates that are based on more recent data and a larger data set collected from modern wind facilities. The Service should revise its model inputs to reflect this new information. Comment: Codifying the Service’s CRM to estimate eagle fatalities at wind facilities is not appropriate because the model has changed four times since it was introduced in 2013. Incorporation into the regulations would inhibit further necessary improvements. Response: The Service has always intended to revise the collision probability component of the CRM using data collected under eagle incidental take permits at wind facilities. However, to date, so few incidental take permits have been issued at wind facilities that no progress has been made in this area. As an alternative for the immediate future, the Service believes that publicly available data collected at wind facilities operating without incidental eagle take permits can be appropriate for such an update, provided the data and protocols VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 under which the data were collected can be verified and shown to be appropriate, and that the wind facilities that make their data available constitute a representative cross section of wind facilities in operation today. The Service is working with the authors of the referenced paper to conduct an evaluation of their data to determine if it meets the above criteria for use in updating the CRM. As to the CRM having changed rapidly since it was introduced, that is not the case. The CRM described in Appendix D of the ECPG is still the version being used by the Service. The CRM has had to be adapted on occasion to accommodate data collected by prospective permittees that did not follow Service guidance in Appendix C of the ECPG, but the CRM remains unchanged. As noted above, we do expect model inputs to change, and as noted in response to other comments, over time we may incorporate other scientifically supported covariates (variables that are possibly predictive of the outcome under study) associated with eagle collision risk into the CRM. In response to this and other comments, the Service has decided not to incorporate any parts of the ECPG into the rule so that future updates can be implemented without going through formal rulemaking. Comment: The rule should not restrict monitoring and survey options for wind projects to Service-approved ECPG protocols. The best available science should be applied to risk assessment and fatality monitoring. Response: The Service’s eagle nonpurposeful take permits program follows DOI policy by using a formal adaptive management framework to quantify and reduce scientific uncertainty. A major area of uncertainty is the mortality risk posed to eagles by individual wind facilities. When the Service created the non-purposeful take rule in 2009, there was no scientifically accepted way to estimate such risk. However, the Service must authorize a specific eagle take limit for each permit in order to ensure cumulative take from all permitted projects does not exceed regional take limits, or that appropriate compensatory mitigation is carried out if the take limits are exceeded. Service and U. S. Geological Survey scientists developed the CRM to estimate eagle fatalities at individual wind facilities using adaptive management; this approach necessitates the collection of standardized pre- and post-construction data and the use of the CRM, or a model much like it, to generate and update fatality estimates. For this reason, in the proposed rule, the Service contemplated codifying its current guidance regarding PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 data collection and fatality predictions in the regulations. As this comment reflects, there was considerable opposition to this among commenters. In response, the Service has modified its proposal for this final rule by omitting the proposal to codify parts of the ECPG in the regulations. However, the adaptive management process cannot function credibly without standardized pre-construction site-specific eagle exposure data, so the Service has instead incorporated minimum standards for such data for incidental take permits at wind facilities directly into this final rule, subject to waiver under exceptional circumstances. The Service also will not require permit applicants to use the CRM to estimate eagle fatalities for their permit applications; permit applicants can use any credible, scientifically peerreviewed model to generate eagle fatality and associated uncertainty estimates for their applications. However, the Service will use the CRM and applicant-provided data to predict fatalities for each incidental eagle take permit for a wind facility. The Service will treat any alternative models used by the permit applicant as candidate models whose performance may be compared formally to that of the CRM as part of the adaptive management process. Comment: The Service’s CRM is flawed and should not be required for use to estimate fatalities at wind facilities. Response: The Service’s CRM was designed as an integral part of the adaptive management process, with model complexity and performance improving over time with use and formal updating. The CRM uses a Bayesian framework that allows for the formal combination of existing (prior) data with project-specific data for eagle exposure and collision probability. The Service requires eagle incidental take permit applicants to conduct preconstruction eagle-use surveys within the footprint of the planned wind facility to generate project-specific data on pre-construction eagle exposure. In the case of collision probability, however, there are no project-specific data to combine with the prior data until after the project has operated for several years. The Service uses prior information on collision probability from the only wind facilities that had publicly available data on eagle use and post-construction fatalities in 2013; these data came from four facilities; did not include information for bald eagles; and, for some, were from older-style wind turbines that might have different collision probabilities than modern E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations turbines. However, these deficiencies only affect the initial eagle fatality estimates at permitted wind facilities. The adaptive management approach calls for formally combining the prior information with standardized data collected on actual eagle fatalities after each facility becomes operational. These updates would occur no less frequently than once every 5 years at each facility. Such updates will naturally correct for any bias in the initial ‘‘collision-priorbased’’ fatality estimate, so that the fatality estimates over most of the life of a wind facility will be heavily weighted towards actual fatality data from the site. Moreover, the post-construction fatality information can be combined with data from other permitted wind facilities to update and improve the collision probability prior for the national CRM. Thus, the Service intends to improve the predictive accuracy of the CRM both at the individual project level and nationally through standardized use as a formal part of its adaptive management process. Comment: Eagle use, the main predictor variable in the CRM, is a poor predictor of eagle fatality risk. Use rates certainly failed to predict the golden eagle fatality rate at several wind facilities in Wyoming. Other factors besides eagle use are more important in determining eagle collision risk. Comment: The Service’s current CRM assumes that modern wind turbines have the same risk profile as wind turbines installed many decades ago despite evidence to the contrary. Response: The Service disagrees that use rates cannot be used to predict eagle fatality risk. For example, the Service has demonstrated that use rates actually performed very well as predictors of golden eagle fatality risk at the same Wyoming wind facilities referenced in this comment. In fact, those facilities were used to demonstrate the effectiveness of the Service’s CRM and adaptive management updating process for a scientific peer-reviewed journal article (New et al. 2015). However, the Service agrees that other factors besides eagle use likely affect collision risk. The ECPG identifies 11 general categories of covariates that we believe may affect eagle collision probability to some degree, including three that relate to turbine design. However, these are not presently incorporated into the CRM because, as pointed out by peer reviewers of the draft ECPG, scientific support for the role of these factors in collision risk is speculative and not quantifiable at this time. Furthermore, the effects of these factors may vary across locations. The Service believes that over time, though application of the VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 adaptive management process, scientific support will accrue for inclusion of some of these covariates in the CRM. Comment: Our Project Eagle Conservation Plan uses the Service’s CRM estimated eagle take of one eagle per year. However, no eagle carcasses have been found in 31⁄2 years of professional biologists monitoring. Response: The fact that no eagle mortalities have been discovered does not mean that no eagles have been killed. Detection rates for eagle carcasses on surveys are less than perfect, and scavengers can remove carcasses before they are detected. The Service relies on estimates that account for these factors that affect detection probability to estimate the actual eagle fatality rate. Also, as discussed in other responses, under the adaptive management framework, estimates of the numbers of eagles killed that account for search effort, detection, and scavenging based on the monitoring data would be used to update the CRM for the project and improve future predictions of fatalities based on site specific data. Comment: The Service’s CRM vastly overestimates golden eagle mortality on the wind projects we have analyzed. Response: The Service has made the explicit decision to manage the quantified uncertainty in the CRM estimates in a manner that reduces the risk of underestimating eagle fatalities at wind facilities. The median (50th quantile) fatality rate estimate is the point at which there is an equal risk of underestimating and overestimating eagle fatalities. The Service uses the 80th quantile of the CRM estimate as the take limit for incidental take permits, which shifts the risk in an 80:20 ratio away from underestimating eagle take. The Service believes this is appropriate because the consequences of underestimating eagle take are far greater than the consequences of overestimating take, and not just because of unintended consequences on eagle populations. For example, if eagle take at the individual permit level was consistently underestimated, many permittees would exceed their permitted take limits, necessitating permit amendments, additional costly and unplanned after-the-fact compensatory mitigation actions, and possible enforcement action with associated fines. For bald eagles with positive EMU take thresholds, consistently underestimating take could lead to permitted take exceeding the EMU take limit, which would necessitate retroactively requiring permittees that initially had no compensatory mitigation requirements PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 91521 to implement mitigation after the fact. Finally, if LAP take limits were unexpectedly exceeded, NEPA compliance for permits overlapping the affected LAP would have to be reviewed, possibly resulting in the need to develop supplemental NEPA documents or new EAs or EISs for operating wind projects. Although these consequences are most likely if there is a systematic bias in the fatality estimates themselves, even with an unbiased estimator some of these consequences could be expected with 50% of permits if the Service were to use the median fatality rate as the take limit for individual permits. In contrast, if permitted take is set at a higher percentile of the fatality prediction, the primary consequences are that the permittee is likely to exceed actual compensatory mitigation requirements over the first 5 years of operation (if compensatory mitigation is required). Additionally, the Service would likely routinely debit some take from the EMU and LAP take limits unnecessarily, thereby underestimating available take when considering new permit requests. Both of these issues are at least partially remedied when initial take estimates for projects are adjusted with projectspecific fatality data after the first 5 years of operation. Comment: The Service should adopt an approach that only requires mitigation for actual, not predicted, eagle take under permits. Otherwise, permittees unfairly have to overcompensate for the true effect of their projects. Response: The Service must authorize a specific eagle take limit for each permit in order to ensure cumulative take from all permitted projects does not exceed regional take limits, or that appropriate compensatory mitigation is carried out if take limits are exceeded. As discussed in the previous response, the Service purposefully uses an estimator for wind projects that is unlikely to underestimate take to avoid the severe negative consequences that brings. However, over-mitigation can be confirmed and rectified when the initial take estimates for projects are adjusted with project-specific fatality data after the first 5 years of operation. At that time, permittees receive credit for any excess compensatory mitigation they have achieved, and those credits can be carried forward to offset future eagle take for that project. Comment: The Service’s CRM predicts unrealistically high rates of bald eagle fatalities at wind projects given the low number that have actually been reported. The Service needs to develop and use a separate fatality E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91522 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations prediction model for bald eagles based on new species-specific data collected per the recommendations in the ECPG. Comment: The Service recently released a draft Midwest Wind MultiSpecies Habitat Conservation Plan (HCP) for public comment. The draft HCP uses a version of the CRM to predict bald eagle impacts based on actual bald eagle data at wind energy facilities rather than solely relying on data from golden eagles and applying those data to bald eagles. The result is substantially different than the use of the Bayesian model based on golden eagle data and presents an assessment of bald eagle take that is both more realistic and more scientific than the proposed method. The Service should similarly here use data that are known to be specifically applicable to bald eagles. To that end, there are a number of ongoing studies and/or recently completed studies that could be used to provide a much better assessment of bald eagle risk and wind farms once they are made public. Response: We are aware of arguments that the CRM predicts unreasonably high rates of bald eagle fatalities at wind facilities; however, we have not received and had the opportunity to carefully review data that are publicly available that actually confirms this. The Service does not disagree that bald eagles may prove to be less at risk from blade-strike mortality than golden eagles, but there are plausible reasons to expect that bald eagle fatality rates may be more variable than those for golden eagles, and under some conditions bald eagle collision probabilities may actually be higher. The reasons are: (1) Bald eagles congregate in larger numbers than golden eagles, and while in those concentrations they engage in social behaviors that may increase their risk to blade strikes at a project sited in such an area; (2) 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 (3) a thorough study in Norway documented a substantial population-level negative effect of a wind facility there on a population of the closely related white-tailed eagle as a result of blade-strike mortality (Nygaard 2010). Also, as noted in response to other comments, possible overestimates of risk are likely to be a problem only for the first 5 years of operation, as the initial fatality estimates for permits at wind facilities are intended to be updated with projectspecific, post-construction fatality data VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 within that time. As noted in response to other comments that expressed frustration with perceived frequent updating of the Service’s CRM, this is an area of active research and investigation, and changes are to be expected as new information becomes available. The Service will make every effort, using the tools at its disposal, to disseminate information on changes or updates to the CRM when they occur. Comment: A process should be developed by which data and reports associated with pre- and postconstruction surveys can be made readily available and the prior distributions can be updated in a streamlined manner for real time application to inform management decisions. Response: The proposed and this final rule state that monitoring reports required under incidental eagle take permits will be available for public inspection. The Service will use the data to perform formal Bayesian updates of the CRM and to generate updated fatality predictions for each individual project at no less than 5-year intervals, and we will update the prior data for collision probability and eagle exposure in the national model a regular interval, dependent on the amount of new data that is available. Comment: Eagle mortality related to electric transmission and distribution is vastly different than other forms of eagle mortality. These utility systems are complex, are located in varied landscapes, and can extend hundreds of thousands of miles. Bald and golden eagles interact with transmission and distribution facilities in different ways. Performing surveys across the country and by utility would be challenging and would provide varied results that may not be meaningful to the Service or the utility. Utilities have provided eagle and migratory bird mortality data to the Service for over a decade. Additional monitoring and mortality data seem redundant and problematic when this information has already been provided to the Service. The resources required for monitoring efforts could be better utilized by retrofitting high-risk poles. Response: In general, the Service agrees with this comment and will take these factors into consideration when developing pre-permitting data standards and permit terms and conditions for monitoring incidental take of eagles at electric transmission and distribution facilities and structures. Comment: While permittee monitoring of the permitted activity is reasonable, the regulations should not PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 place a burden on permittees to monitor ‘‘unpermitted take.’’ Response: The regulations do not ask permittees to monitor unpermitted take (except for take caused by the permitted activity that exceeds the take authorization). The Service compiles such information and uses the data in its LAP assessment, but this assessment does not require any information on unpermitted take be provided by the applicant. Comment: The Service does not provide sufficient evidence that monitoring is an effective use of resources that actually confers conservation benefits to eagles. The high cost of monitoring is especially concerning given that the Service has not indicated that such a burden would actually further the purposes of the permit. Overly burdensome monitoring requirements discourage permit applications. Response: Monitoring is among the most important and essential elements of the Service’s eagle permitting program. The Service has acknowledged in these responses to comments and elsewhere (e.g., the ECPG, the proposed rule, and the PEIS) that considerable uncertainty exists in all aspects of the eagle permitting program, particularly with respect to the accuracy of models used to predict the effects of actions like the operation of wind turbines on eagles. The Service has followed DOI policy and designed the eagle permitting program within a formal adaptive management framework, as described in response to other comments, in the preamble to this final rule, and in detail in Appendix A of the ECPG. Monitoring is an essential and fundamental element of adaptive management; it is absolutely necessary to reduce uncertainty and improve confidence in the permitting process; it is also essential to account for and provide credit to permittees who overmitigate for their eagle take in the initial years of wind project operation. We will continue to require monitoring as a condition of all incidental take permits for which uncertainty exists to fulfill the Service’s adaptive management objectives and to ensure take of eagles is within the terms and conditions of the permit. Comment: Based on a review of data collected for pre-construction eagle use surveys, little in the way of standardization actually exists among the use rate data that the proposed rule characterizes as the products of a standard protocol. Response: We agree with this commenter that the ECPG, as nonbinding guidance, has not resulted in E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations the level of standardization that we had hoped. For that reason, we proposed incorporating key elements of the ECPG into the final rule by reference. Based on comments we received on the proposal, we have decided to instead include key language directly in this rule on preconstruction survey procedures and resulting data that will be required for eagle incidental take permit applications at wind facilities, and general guidance for other activities. We have not included similar requirements in the rule regarding post-construction fatality monitoring because these survey protocols are incorporated as binding terms and conditions of the incidental take permits. We added language to the preamble of this rule that explains why we believe this action will improve standardization of data collection. Comment: The Service must not rely on any for-profit industry to monitor itself. Data obtained by third party monitors should be provided directly to the Service before or at the same time it is provided to project operators. Comment: To the extent there are even benefits to using third-party monitors, there are considerable costs to using them. Without a showing or evidence that observation and/or the reporting has been biased, it is unreasonably burdensome, arbitrary, and capricious to impose such costs. Response: We agree with the large number of entities that urged the Service to require third-party monitoring for some permits. The final regulations require that for all permits with durations longer than 5 years, monitoring must be conducted by qualified, independent entities that report directly to the Service. In the case of permits of 5-year durations or shorter, such third-party monitoring may be required on a case-by-case basis. With regard to the second comment, we do not agree that there will be significant additional costs imposed by the requirement for third-party monitoring. Most companies already rely on and pay for consultants to conduct project monitoring, presumably because it is more cost-effective than supporting those activities ‘‘in-house.’’ Comment: The Service should not codify any parts of the ECPG as that document needs to be a living document. To the extent that the Service does codify parts of the ECPG, at a minimum the entire document should be subject to further notice and comment. Comment: The Service should provide a list of required data and estimates it needs to process an eagle incidental take permit request, rather than the methods by which the data VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 must be obtained. The feedback loops between data collection and analysis that the Service notes as rationale for requiring standardized methods are not dependent on collection methods, only on data types. Response: In response to these and other comments, the Service has withdrawn the proposal to codify Appendices C and D of the ECPG. However, the adaptive management process underpinning the entire eagle incidental take permit program absolutely requires standardized preconstruction, site-specific eagle exposure data. The second comment that the means by which the data are obtained do not matter for the adaptive management process is simply incorrect. Instead, the Service has incorporated minimum standards for such data for incidental take permits at wind facilities directly into this final rule, subject to waiver under exceptional circumstances. We also disagree with the suggestion that requiring these data standards necessitates additional notice and public comment. The rule language is restricted to key elements of Appendix C of the ECPG, which has gone through and been modified as a result of two rounds of public notice and comment, and the survey data requirements have been through two rounds of scientific peer review. These survey requirements should not be overly burdensome or unexpected because they were substantially modified after the first round of public comments on the ECPG to be largely compliant with the wind industry’s existing voluntary standards for pre-construction eagle surveys. Moreover, these standards represent the minimum that the Service has specified as necessary to support an eagle incidental take permit application since 2013 (per the ECPG). Comment: All wind farms should be outfitted with remote video cameras on wind turbines that can be viewed at all times by the public to aid enforcement of wildlife mortalities. Response: The Service is unaware of data that show that video cameras on wind turbines are an effective means for obtaining unbiased estimates of eagle fatality rates. We firmly support the exploration and development of such technology, however, and these regulations are flexible enough to allow for their incorporation into postconstruction monitoring protocols when warranted. Local Area Populations Comment: In general the use of an LAP analysis to try to ensure no impact on local populations has merit but how PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 91523 are LAPs determined? Please provide a greater explanation with examples so there can be greater clarity in understanding the implications of the proposed rule and just how the more restrictive implications of the LAP analysis will provide protection to key areas. Response: The LAP is determined by extrapolating the average density of eagles in the pertinent EMU to the LAP area, which is the project area plus an 86-mile (bald eagle) or 104-mile (golden eagle) buffer; these distances are based on natal dispersal distances of each eagle species. As an example, consider a one-year golden eagle nest disturbance permit application in western Colorado, which is in Bird Conservation Region (BCR) 6 under the current 2009 EMUs. The activity being undertaken could lead to the loss of one-year’s productivity, which has an expected value of 0.59 golden eagles removed from the population (the average oneyear productivity of an occupied golden eagle territory in BCR 16 at the 80th quantile, as described in the Status Report). This EMU has an estimated golden eagle population size of 3,585 at the 20th quantile, and the BCR covers 199,523 square miles, yielding an average golden eagle density of 0.018 golden eagles per square mile. The local area around a single point (the nest to be disturbed in this case) is a circle with a radius of 109 miles, which yields an LAP area of 37,330 square miles, thus the estimated number of golden eagles in this LAP would be 671 individuals. The 5% LAP take limit for this permit under the current 2009 EMUs would be 34. The Service has developed a Geographic Information System (GIS) application that queries spatial databases on existing eagle take permit limits and known unpermitted take within the LAP area, as well as for any other permitted projects whose LAP intersects and overlaps the LAP of the permit under consideration. If this query indicates existing cumulative permitted (i.e., over all existing permits) take for the LAP area is less than 34, and the unpermitted take database and other information available to the Service does not suggest background take in the LAP is higher than average, a permit for the take of 0.59 golden eagles could be issued without further analysis of the effects on eagles by tiering off this PEIS. If either condition were not true, the permit would require additional NEPA analysis. In either case, if the permit is issued, it would require compensatory mitigation to offset the authorized take, because the EMU take limit for golden eagles is zero. E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91524 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Comment: Given the nature of the golden eagle population in the western United States, identification of local populations with meaningful demographics is very difficult, primarily due to emigration and immigration. Accordingly, the Service should focus on achieving only a stable or increasing EMU population. Comment: As long as national and EMU eagle populations stay stable or increase, the Service’s goals for eagles have been met. The LAP analysis is unnecessary and burdensome, and has no biological value. Response: The Service disagrees. Biologically, recent data from satellite tracking studies show that while both bald and golden eagles range widely, there is high philopatry to natal, wintering, and migration stopover areas. Thus, local impacts can have farreaching effects on eagle populations. Local populations of eagles also are of great cultural and social importance. The Service received many comments from states, tribes, local governments, and environmental organizations to this effect, and in support of including the persistence of local eagle populations in the management objective for eagles. Thus, the Service concludes that preservation of local eagle populations accomplishes both important biological and cultural objectives. Comment: Assuming uniform density in the LAP analysis 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. The Service should account for variation in density, as well as improved knowledge of seasonal changes in eagle density and population-specific movement patterns. Comment: We recommend that the Service’s analysis includes more precise bald eagle LAP data where available. This would ensure that permitting decisions are well-aligned with the proposed preservation standard, and would be consistent with the Service’s commitment to use the best available information and practice the best science. Response: The Service agrees with these comments in principle. The Service acknowledges two limitations in using the LAP method to regulate incidental take. First, eagle density estimates are derived from nesting or late-summer population surveys; therefore, estimates do not account for seasonal influxes of eagles that occur through migration and dispersal. Second, eagle density estimates are not uniform across the EMU. Current LAP take thresholds allow the Service to authorize limited take of eagles while VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 favoring eagle conservation in the face of the uncertainty. Given better information on resource selection, seasonal variation in density, and an improved understanding of seasonal changes in eagle density and population-specific movement patterns, the Service will refine the LAP analysis to better assess potential impacts of projects. We do not believe it would be appropriate to make such adjustments piecemeal or on a case-by-case basis, because LAP areas extend across state and even EMU boundaries; thus, a common frame of reference is necessary throughout each LAP. We are actively engaged in research designed to allow for better accounting of spatial and temporal variation in eagle density in the LAP calculations. We will incorporate these improvements to the LAP analysis as better estimation procedures are developed through formal updates to the ECPG after notice and public comment. Comment: By requiring the LAP analysis and setting a take limit of 5% for the LAP, the Service appears to be setting a ‘‘hard cap’’ on take at this scale. It is unclear whether any take exceeding 5% of the LAP would be allowed, even if offset by compensatory mitigation. Comment: The LAP analysis could unnecessarily limit incidental take and add to the regulatory burden, thereby potentially limiting some economic development in high-density bald eagle areas, without providing conservation benefit. In contrast, implementing the LAP analysis as proposed could put areas of low bald eagle densities at higher than necessary risk of local depletion. Comment: We recommend that the LAP provision be applied as guidance, not regulation, especially for areas of high eagle densities that are not at risk of local depletion from limited take. Comment: The proposed rule language setting a 5% LAP take limit is highly concerning. As written, it appears that no permits would be issued to new projects unless those projects can somehow reduce their own historic take. Response: The purpose of the 5% LAP take limit is to ensure that projects that tier off this PEIS will not cause the extirpation of local eagle populations. Exceeding the 5% LAP take limit does not mean that we cannot or would not issue a permit. Instead, it would trigger a harder look at local eagle population effects at the individual project level, often through development of a projectlevel EA or EIS. The result of that analysis could be a determination that the permit would be inconsistent with PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 the Eagle Act preservation standard, in which case the Service would either not issue the permit or might determine that, with the application of LAP-level compensatory mitigation, a permit could be issued. However, in some cases, mostly involving bald eagles, we expect the closer look would show that, despite the high local take rate, eagle populations at the LAP scale are robust enough to withstand additional take, in which case LAP-level mitigation might not be required in order to issue an incidental eagle take permit. The main point is that the effect at the LAP scale of take exceeding 5% will have to be determined on a case-by-case basis. Based on our analysis of the populationlevel effects of take for bald eagles, we do not believe that applying the LAPscale analysis as proposed risks causing the extirpation of local bald eagle populations even in areas of lower-thanaverage density. Comment: The unpermitted take is part of the baseline above which the LAP permit thresholds are applied, and it therefore must not be subtracted from available take at the scale of the LAP or EMU. Response: The Service has determined that take, authorized or not, that was occurring prior to 2009 does not need to be accounted for within the EMU take limits. This determination does not apply to the LAP take limits, nor does it apply to unpermitted take that has been added since 2009. Comment: Taking into account unpermitted take within an LAP is problematic because many regions may already exceed the 5% take limit cap by virtue of the existing activities to which unauthorized take is attributed. This means that unpermitted projects are essentially given priority over permitted projects. Comment: The LAP approach seemingly penalizes developers for siting projects in areas with fewer eagles, which, if true, is entirely counter-intuitive, counterproductive, and opposite from what a permit program of this nature should attempt to accomplish. In areas where eagle densities are low, the chances that the 5% LAP take limit will be exceeded is higher. Response: Because the 5% LAP take limit only applies to Service-authorized take, the take limit itself does not result in a priority being given to unpermitted take. However, it would be irresponsible not to consider such information when and where it is available, and that is what this component of the proposed rule requires. For example, take of golden eagles in the vicinity of the Altamont Wind Resource Area in E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations California is not currently under permit, yet that take has been well studied and would necessarily have to be considered as part of the cumulative effects considerations when evaluating an incidental eagle take permit application in that region. The LAP approach will not penalize developers for siting projects in areas with fewer eagles. Because the Service uses the mean eagle population density for all LAPs within an EMU, there is no difference in the LAP population calculated for high- or low-density areas with respect to the LAP analysis. Comment: Using unpermitted take as a metric for permit issuance provides deference to developers and others who choose not to obtain eagle permits, and increases costs for those who do. This creates a de facto prioritization of unpermitted take instead of penalizing those who take eagles illegally. Response: The Service agrees that eagle take that is not authorized by permits should not take precedence over take for which permits are sought. Yet, biologically, either form of take results in mortality, which has the same effect on eagle populations, and so both must be accounted for in the Service’s analyses and its determinations of whether additional mortality can be sustained relative to the population objectives. Relative to illegal take, the Service’s Office of Law Enforcement and DOJ have placed a high priority on enforcement of the eagle take regulations, and those efforts have resulted in several recent settlement agreements with operating wind facilities. The Service intends to increase its prioritization of Eagle Act enforcement efforts following implementation of this rule change with the hopes of increasing incentives for project proponents to seek permits to cover take that is currently unpermitted but which might meet the requirements for coverage under an incidental take permit. Comment: Because the proposed rule intends to rely on an LAP take limit to demonstrate no significant impact, it must analyze and quantify all eagle impacts, including unauthorized take levels, based upon the best available science and demonstrate how an LAP can sustain additional authorized take. It is inappropriate to limit analyses to authorized take only, which will severely underrepresent actual impacts to eagles. A science-based approach would commit to using the best available information to estimate the level of unauthorized take and then updating that information on a regular basis. VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 Comment: Take estimates are necessarily speculative for these unauthorized take sources, and Service personnel could use the proposed 5% LAP cap to deny an eagle permit on this basis. Comment: In order to meet its preservation standard, the Service must require permit issuance determinations that consider all sources of anthropogenic take. The Service must address cumulative authorized and unauthorized take in an LAP when determining permit eligibility by revising 50 CFR 22.6(f)(2) as follows: The take will likely not result in cumulative anthropogenic [remove: authorized] take that exceeds 15 percent of the LAP, or the Service can determine that permitting such take [remove: over 5 percent of that LAP] is compatible with the preservation of the bald eagle or the golden eagle. Comment: The proposed rule states that Service biologists would consider any available information on unpermitted take within the LAP area; evidence of excessive unpermitted take would be taken into consideration in evaluating whether to issue the permit. What would constitute ‘‘any available information’’? Who would be responsible for determining whether there was ‘‘excessive unpermitted take’’? How is ‘‘excessive’’ defined? Response: The Service agrees that our estimates of unpermitted take are generally going to be speculative. There is only so much that can be done scientifically with anecdotal, incidental information, which characterizes most of the information that exists on unpermitted eagle take. However, the Service’s proposal makes it very clear that we do intend to consider available information on unpermitted take as part of the LAP assessment. While the automatic trigger for additional analysis that could lead to a negative permit finding is a permitted take rate in excess of 5% of the estimated LAP, a high unpermitted take rate could also trigger the need for additional analysis and a negative finding with respect to permit issuance. For golden eagles, we have identified that an unpermitted take rate in excess of 10% could be considered high; for bald eagles, we have no scientific basis for establishing such a threshold. However, because unpermitted take is incompletely known and the degree of knowledge varies greatly from place to place, there will be few if any locations where unpermitted take can be accurately estimated, which means that in most cases the known unpermitted take will be greater than what is indicated by the available data. That is why the Service PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 91525 does not propose to set a hard limit on overall take, or on unpermitted take specifically. Instead, the Service will necessarily rely on best judgment to decide whether unpermitted take in any particular LAP is in excess of levels that would allow for additional take without risking extirpation of the LAP. Where data show that unauthorized take exceeds 10% of the LAP, if the incidental take permit is issued, the Service may require compensatory mitigation even if the EMU take threshold has not been exceeded. Finally, with respect to the burden on applicants, Service biologists will conduct the LAP analysis, and as such it will not trigger additional work for the permit applicant. To assist with the assessment of unpermitted take at the LAP scale, the Service has compiled and will continue to compile all available information from eagle necropsy reports, Office of Law Enforcement investigations, Special Purpose Utility Permit reports, and other sources into a national database that will be queried by Service biologists using a spatial GIS tool as part of each LAP analysis. We have also established internal processes that will result in more dead eagles being necropsied (to provide information about cause of death) and included in the database. Comment: The Service should select an alternative in the PEIS where the LAP analysis approach is not incorporated into the regulations. Instead, it should develop specific eagle population size goals (other than the 2009 baseline) for each EMU and then use those targets to inform permit decisions within the EMUs, rather than the LAPs. Response: The Service considered a number of other alternatives as possible management objectives for EMUs, among them setting EMU-specific population objectives. However, given the timeframe that was established for this rulemaking, the complexity involved in setting EMU-specific management objectives, and the lack of demographic data specific to each EMU, the Service decided to consider only the 2009 EMUs and Flyways as EMU alternatives for the PEIS, and to incorporate objectives for the persistence of local populations though a coupled LAP assessment process. Comment: The Service should ensure that EMU and LAP take level analyses are aligned or provide an explanation as to why they are not. Eagle density estimates should not account for wintering or migrating birds for determining take levels in an LAP. Using density estimates is a liberal approach, which could allow for more E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91526 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations take (e.g., involving overwintering birds that would eventually breed far from the LAP) than can be sustained by the resident breeding population in that same LAP. The Service should consider a mechanism for segmenting the population being impacted (e.g., breeding/year-round vs. wintering/ migrating). Response: The EMU and LAP take limits are aligned to the degree that, across an EMU, we would expect a landscape with some areas (e.g., in proximity to permitted projects) having comparatively high levels of authorized anthropogenic mortality but within the LAP take limit, but offset by other areas where authorized anthropogenic take is low, averaging to a maximum anthropogenic take across the entire EMU equal to or less than the EMU take limit. The eagle density estimates used to determine the 5% LAP take limit are summer population levels, and as such do not account for or include wintering or migrant eagles that will likely comprise some of the actual take. Thus, the take limits are conservative with respect to local breeding populations, not liberal as this comment suggests. The Service has initiated a genetic and isotopic assignment test project in conjunction with other cooperators with the goal of eventually being able to determine the approximate natal origin of eagles taken under permits. If this effort is successful, the Service will eventually be able to manage eagle take according to natal population. Until such time, we will continue to manage take in the conservative manner described here. Comment: The proposed 5% LAP take limit for bald eagles in the southwest EMU exceeds Arizona’s population growth rate of an average of 3.7% annually and could cause population declines. The Service should evaluate a separate EMU and a separate take limit for bald eagles in Arizona. Comment: Because the LAP analysis uses EMU densities instead of local densities, it puts New Mexico’s small breeding population of bald eagles at elevated risk. Comment: The LAP criteria should be applied more strictly in the context of the Southwestern bald eagle population by either lowering the take exceedance thresholds for that population or by making take that exceeds the thresholds impermissible instead of merely ‘‘inadvisable.’’ Response: Application of the LAP analysis as explained in the PEIS leads to an eagle density in the Southwestern Bald Eagle EMU of 0.001 bald eagles per square mile. This translates into a take limit of 1 individual per year per LAP. VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 A single LAP centered in the middle of the breeding distribution of bald eagles in Arizona encompasses most of the other occupied breeding territories; thus it is unlikely take of more than one to three bald eagles per year could be approved by the Service in Arizona without conducting a supplemental NEPA analysis. Similarly, in New Mexico, any project that would be predicted to take one or more bald eagles per year would require supplemental analysis, and the permit request could be denied. The Service’s models suggest this level of take is well within the sustainable take rate and will not cause population declines in Arizona or elsewhere in the Southwest. A final point relevant to this comment is that any Service permit for take of eagles will specify that the permittee is responsible for complying with all applicable state, tribal, and local laws. States have full discretion to require more stringent protection for eagles under state law. Comment: The LAP criteria should be applied more strictly in the context of the Sonoran Desert bald eagle population. The Service proposes to set a lower take limit for bald eagles in the proposed southern Pacific Flyway EMU; however, it appears that the proposed EMU includes more populations of eagles than just the Sonoran Desert bald eagle. The Service should separately manage the Sonoran Desert bald eagle. Response: Although we recognize that bald eagles from the Sonoran Desert have special significance to many Native American tribes in the region, for the purposes of the PEIS and overall management of bald eagle incidental take, the Service does not recognize the Sonoran Desert bald eagle as a distinct taxon or management unit. We do, however, identify bald eagles in the Southwestern United States as a separate management unit based on differences in vital rates compared to other bald eagle populations. We note that not all of these differences are lower; for example, survival of adult bald eagles in the Southwest may be higher on average than in the other management units. Nevertheless, these differences and a desire to allow for continued population growth in the Southwest led the Service to propose a lower take rate there than is indicated based on estimated vital rates. Also, as noted in response to other comments, the LAP analysis would allow very little take per year before additional review would be necessary. For these reasons, we believe the selected PEIS alternative is adequately protective of bald eagles in the Southwest. PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 Comment: With regard to the cumulative effects analysis within an LAP, should all potential projects that might cause disturbance be treated uniformly? For example, should the first intrusion of relatively intensive human activity in close proximity to a natal area be treated the same as a project at the outer edge of the natal area? Response: In cases where nest disturbance may occur, it is nearly always a matter of judgment to predict in advance whether the activity will actually constitute disturbance to the degree that take might occur (e.g., a nesting attempt is unsuccessful). The Service has developed the National Bald Eagle Management Guidelines to help assess when a take permit might be advisable, and we are working on similar guidance for golden eagles. Comment: Some activities are clear candidates for the use of the cumulative impacts analysis. It is unclear, however, if all projects in the LAP, particularly those which are relatively non-intrusive, should be subject to the same cumulative analysis. Response: Some form of cumulative effects analysis is required for all eagle incidental take permits, and the LAP analysis provides a consistent standardized way to conduct those analyses across all activities, assuming the effect can be expressed in terms of estimated fatalities or decreased productivity. Comment: Take thresholds should only apply to unmitigated take. For projects adhering to a no net loss standard, no take should be factored into the EMU take limit, and if mitigated within the LAP, take should also not be factored into the LAP threshold. Response: The Service has not proposed to require compensatory mitigation except in cases where take limits are exceeded. In cases where projected take exceeds the EMU take limit, that projected take will not be subtracted from the EMU take limits, because it is offset. The take is subtracted from the LAP take limits, however, and if that results in the LAP take limit being exceeded, that would trigger additional environmental review. That additional environmental review would take into account whether the take was offset within the LAP or not, and how affects should be reflected in the LAP take accounting. Comment: Defining the LAP using natal dispersal distance is a good starting metric, but other factors such as proximity to suitable habitat and topography should be taken into consideration, and the latest information on population genetic differentiation, population surveys, and E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations telemetry information should be taken into account. Comment: We recommend that the Service’s analysis includes more precise bald eagle LAP data where available. This would ensure that permitting decisions are well-aligned with the proposed preservation standard, and would be consistent with the Service’s commitment to use the best available information and practice the best science. Comment: It is important to recognize that Alaska contains a wide variety of eagle habitats, ranging from temperate rainforests in southeast Alaska to boreal forests and tundra in the north, that support differing densities of bald eagles. A one-size-fits-all management strategy, such as the proposed level of sustainable take for LAPs, is not appropriate in an EMU as diverse as Alaska, and thus levels of allowable take should not be uniform throughout the state. Response: We agree that incorporating fine-scale biological data into the LAP analysis is a desirable goal. However, because such detailed data are not available for the vast majority of locales where incidental take permit applications are desired, it is not practical to require this level of detail in LAP analyses at present. Where such data are available and would contradict conclusions from the standard LAP analysis, they may be considered by the Service, although likely after additional NEPA analysis. Comment: The goal of simply maintaining the persistence of local populations is not sufficient. The LAP objective, like the EMU objective, should be ‘‘consistent with the goals of maintaining stable or increasing breeding populations.’’ Response: Our analyses suggest the LAP take limit will actually allow for additional bald eagle population growth at the LAP scale. All golden eagle take will have to be offset at a 1.2 to 1 ratio, though the mitigation will not necessarily occur in the same LAP as the take. Comment: The Service should not use the overly conservative 90th quantile for golden eagles to define the LAP area in order to match the median for bald eagles. The area bounded by typical, not extreme, movement is necessary to ensure fair analysis of the LAP under the proposed rule. Response: The natal dispersal value the Service uses to define the LAP area for bald eagles is actually the median value for females; in bald eagles, as in most raptors, natal dispersal is femalebiased (females disperse farther than males; Millsap et al. 2015). By adopting VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 the median value for female bald eagles, the Service was able to capture most of the natal dispersal distribution for males as well. Millsap et al. (2015) lacked enough known-sex individuals to compute separate estimates of natal dispersal distance for male and female golden eagles, and so the Service used an updated 90th quantile for the pooled distribution instead. This is explained in Appendix A5 in the Status Report. Comment: The Service advocates for siting of wind energy facilities in areas where impacts to eagles are expected to be low; however, siting facilities in lowuse areas may inadvertently increase the chance that the project is sited in an area that already exceeds the 5% LAP take limit, making it more difficult or costly to obtain a permit than for a project sited in an area with higher eagle density. Response: The Service uses the mean eagle population density for all LAPs within an EMU; thus, there is no difference in the LAP population calculated for high- or low-density areas with respect to the LAP analysis. Thus, this scenario is implausible. Comment: Codification of the LAP cumulative effects analysis creates an economic burden on companies that have fewer resources. Response: Actually, the LAP analysis will likely reduce costs for permits. First, the LAP cumulative effects analysis is a relatively simple exercise that is conducted by the Service, so no additional resources are required from the applicant to conduct the analysis other than what would be required otherwise. Second, in cases where the LAP analysis is conducted as analyzed in this PEIS, further project-specific NEPA analyses of the cumulative effects of the activity on eagles will not be necessary when projected take is within LAP take thresholds, thereby reducing overall costs for prospective permittees. Comment: The LAP approach is problematic for long, linear projects such as electric transmission lines that may extend hundreds of miles or for large utility service areas that contain thousands of miles of distribution lines. Calculating and analyzing impacts over multiple LAPs for a single transmission line project or utility service area would be overly complex and very difficult for both the project proponent and the Service, particularly if the lines cross LAPs where the 5% cap is already exceeded. Comment: The LAP analysis is specific to the wind farm and utilities industry. It cannot be fairly applied to real estate projects or any other industries. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 91527 Response: The Service has developed a spatial GIS tool that allows its biologists to compute the LAP calculations quickly, easily, and accurately. The LAP analysis can be applied to any project with borders that can be defined, including linear projects. As noted elsewhere, if these analyses indicate that take in excess of the 5% limit exists within the LAP, more thorough analysis is triggered. It does not necessarily mean an eagle incidental take permit cannot be issued. Mitigation Comment: The Service must clarify how proposed compensatory mitigation: (1) Would not have occurred in the absence of a specific permitting requirement; and (2) does more than require permittees to complete actions that a third party is otherwise legally required to complete under federal, state, or local law. Response: This final rule adopts new language at 50 CFR 22.26(c)(1)(iii)(D) consistent with DOI policy requiring compensatory mitigation to be additional and improve upon the baseline conditions of the impacted eagle species in a manner that is demonstrably new and would not have occurred without the compensatory mitigation measure. Compensatory mitigation must provide benefits beyond those that would otherwise have occurred through routine or required practices or actions, or obligations required through legal authorities or contractual agreements. Comment: The concept of requiring mitigation to exceed existing, ongoing, or future conservation efforts is speculative and should be removed. This concept would remove incentives for applicants to participate in voluntary actions promoting eagle conservation, especially if no credit is given for these actions. Response: We have removed language requiring compensatory mitigation to be additional to ‘‘foreseeably expected’’ conservation or mitigation efforts. In addition, we have added language clarifying that voluntary actions to benefit eagles taken prior to permit application may be credited towards compensatory mitigation requirements. Comment: Clear guidance on how to quantify the level of compensatory mitigation that will be required for golden eagle take, other than that it will be greater than 1:1, is currently lacking and should be provided. Response: The preamble to this rule states that compensatory mitigation for any authorized take of golden eagles that exceeds take thresholds would be designed to ensure that take is offset at E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91528 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations a 1.2 to 1 mitigation ratio to achieve an outcome consistent with the preservation of golden eagles as the result of the permit. We believe this baseline mitigation ratio appropriately balances meeting our obligations under the Eagle Act with what is reasonable, fair, and practicable to permittees. Comment: The Service should define what the unit of mitigation is, for example, territories, nests, or eagles. Response: Impacts of an authorized project and benefits of compensatory mitigation are reflected in terms of numbers of eagles. For example, disturbance take would be analyzed for its impact on breeding success (see Tables 13 and 14 in the Status Report). Habitat restoration would be analyzed for its potential benefits to the eagle population. Comment: Requiring compensatory mitigation at a greater than 1:1 ratio runs the risk of violating the ‘‘rough proportionality’’ requirement of the Fifth Amendment’s takings clause (U.S. CONST. amendment V; Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2596 (2013) (‘‘Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property[,] but because they impermissibly burden the right not to have property taken without just compensation.’’)). By definition, requiring mitigation at a greater than 1:1 ratio will produce conservation benefits higher than needed to offset actual impacts. The government may ‘‘choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts’’ (Id. at 2595 (emphasis added) (There must be a ‘‘ ‘nexus’ and ‘rough proportionality’ between the property that the government demands and the social costs of the applicant’s proposal’’ (quoting Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).))). Also, because the unconstitutional conditions doctrines forbids burdening an individual’s constitutional rights by coercively withholding benefits, the Service may not require compensatory mitigation at a greater than 1:1 ratio in exchange for issuance of a take permit. Response: The two cases cited by the commenter are not relevant to the offsetting compensatory mitigation requirements in this regulation. City of Tigard dealt with a specific regulatory encumbrance on a portion of real property for an unrelated public benefit, and Koontz dealt with a requirement for VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 a conservation easement that was far in excess of what was necessary to mitigate the impacts of the project. Even if one could argue those cases are applicable here, the Court in City of Tigard developed a ‘‘rough proportionality’’ test to determine whether a permit approval condition constitutes a taking, as noted by the commenter. This regulation requires an offsetting mitigation ratio of 1.2 to 1, which, even if it could be considered more than necessary to offset the impacts of a project, falls well within the bounds of being roughly proportional to the impact being mitigated. The Court in City of Tigard held that the regulating entity must make an individualized determination that the condition imposed is ‘‘related in nature and extent to the impact of the proposed development,’’ though no precise mathematical calculation is required. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). The Service has clearly explained in this final rule that the compensatory mitigation ratio is required to ensure that any authorization of golden eagle take is compatible with the preservation of golden eagles. The compensation ratio is not a generalized public benefit like the one struck down in City of Tigard, rather it is an encumbrance tied directly to the purpose of the regulations. Thus, this regulation clearly meets the Court’s requirement by explaining in detail the compensatory mitigation requirement and its relation to the predicted impacts of a project and whether those impacts are compatible with the preservation of eagles as required by the statute. Under the Eagle Act, the Service can issue a permit only if it is compatible with the preservation of eagles. We have determined that authorizing take of golden eagles while imposing compensatory mitigation at a 1 to 1 ratio is not sufficient to meet our preservation standard at this time. If eagles are not being preserved, one option is simply not to authorize take until we can determine how to reduce unpermitted take to the point where golden eagle breeding populations are stable or increasing. However, a primary purpose of this rule is to encourage more sources of unpermitted take to apply for permits and implement conservation measures. Rather than imposing a moratorium on new permits for golden eagles, we are requiring offsetting compensatory mitigation at a 1.2 to 1 ratio. In order to authorize any take of golden eagles under these regulations, we must ensure that take is compatible with eagle preservation, and because golden eagles currently are potentially facing declines, PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 the 1.2 to 1 compensatory mitigation ratio appropriately balances compliance with the Eagle Act with not unduly burdening recipients of permits. Comment: The Service should provide greater details in the rule and/ or in guidance to clarify the standards for approving compensatory mitigation measures. Several commenters promoted the adoption of specific mitigation measures including habitatbased conservation banks, lead abatement programs, road carcass removal, support for rehabilitation centers, and others. Response: Quantifying the benefits of various compensatory mitigation measures and developing standards for their application in permitting is complex. The Service and partners, including industry and NGO partners, has already spent considerable time and effort in developing additional compensatory mitigation measures with the goal of eventually approving their use as effective offsetting compensation. We intend to engage stakeholders to develop additional guidance and the standards for approving mitigation credits, setting appropriate mitigation ratios to address particular mitigation measure effectiveness and uncertainty, and establishing appropriate assurances for durability of mitigation measures. Comment: In-lieu fee programs frequently do not provide meaningful compensatory mitigation prior to the onset of impacts. Response: Any in-lieu fee program approved by the Service for use in eagle permitting must meet the same high, equivalent standards as any other mitigation type and must comply with DOI and Service mitigation policy. Compensatory mitigation for eagle take is still relatively new, with few approved methods. This final rule allows for many different types of mitigation to be proposed to allow applicants and the Service to expand the options available for providing compensatory mitigation, providing all such measures comply with the same fundamental standards. The Service will be developing additional implementation guidance to further clarify the standards by which we would approve particular compensatory mitigation types or measures. Comment: Unproven mitigation measures should not be allowed. Response: The Service agrees that proposed compensatory mitigation measures that have no basis for their effectiveness would not be approved. Approval of mitigation measures must be based on the best available science. This does not mean that no uncertainties can remain for a E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations mitigation measure to be approved. Any remaining uncertainties regarding the effectiveness of a mitigation measure must be accounted for to ensure that eagle take is appropriately offset. The Service intends to establish baseline standards for particular mitigation measures and involve the public in setting those standards. Comment: To expand the breadth of defensible compensatory mitigation options, targeted research should be funded as part of the compensatory mitigation to facilitate the approval of additional effective compensatory mitigation tools. Funding from compensatory mitigation should not be directed toward activities that have less tangible benefits to eagles such as research, population monitoring, or education. Response: Research and education, although important to the conservation of eagles, are not typically considered compensatory mitigation. This is because they do not, by themselves, replace impacted resources or adequately compensate for adverse effects to species or habitat. In rare circumstances, research and education that can be linked directly to threats to the resource and provide a quantifiable benefit to the resource may be included as part of a mitigation package. These circumstances may include: (1) When the major threat to a resource is something other than habitat loss; (2) when the Service can reasonably expect the benefits of applying the research or education results to more than offset the impacts; or (3) where there is an adaptive management approach wherein the results/recommendations of the research will then be applied to improve mitigation of the impacts of the project or proposal. Comment: As written, the regulations equate to a ‘‘first come, first served’’ standard regardless of the number of eagles taken. Because the ‘‘first come, first served’’ standard will create inequities proportional to the level of take, we recommend establishing standardized mitigation for each eagle taken, so that mitigation is equitable to the level of take. Response: We did consider requiring some level of mitigation for all take, whether within the established take limits or not. However, we have decided not to require mitigation for take that is within the established EMU take limits. For golden eagles, due to their population status, the EMU take limits are set at zero, and permits will all requiring compensatory mitigation. Given the relatively robust population status of bald eagles, and the likely demand for take permits, the Service VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 anticipates that bald eagle populations will continue to grow without implementation of compensatory mitigation for take within the EMU take limits. Comment: The Service should not condition eagle take protection for an individual project on a permittee acceding to compensatory mitigation for unrelated actions by others. Doing so would raise APA and due process concerns. Additionally, the Service should clarify that no permittee will be required to offset take in excess of take levels reasonably attributable to the activities covered in the permit. Response: The Service will not impose compensatory mitigation requirements on an individual project unless that project, either singly or in conjunction with other projects in the same EMU (or possibly the same LAP), takes eagles in excess of the take limit. Projects removing eagles from the same EMU or LAP are not unrelated in terms of the eagle populations they affect, and as such the Service maintains it is appropriate and necessary to consider them cumulatively in assessing whether compensatory mitigation is necessary or not. If compensatory mitigation is required, it will be assessed in proportion to the number of eagles estimated to be taken under each permit. For golden eagles, permittees will be expected to contribute to reversing potential population declines, a necessary action if the Service is to allow any additional take of golden eagles and meet the stable population objective. Permittees are not expected to carry the full burden of offsetting unauthorized take; the Service has and will continue to increase enforcement actions against those taking eagles illegally so that unauthorized take will be reduced and restitution can be obtained. Comment: The proposed rule’s modification of the preservation standard with the goal of achieving a net conservation gain or no net loss is premature in light of the Service’s agency-wide mitigation policy still being in draft form. Response: The Service is relying primarily on the standards set forth in the Eagle Act, as interpreted by the Service. The Service has interpreted ‘‘compatible with the preservation’’ of eagles to mean consistent with the goal of maintaining or improving breeding populations of eagles since 2009. This final rule adopts the following definition: ‘‘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 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 91529 management units and the persistence of local populations throughout the geographic range of each species.’’ We have coordinated the development of these revised eagle regulations with development of the Service-wide mitigation policy to ensure consistency. In addition, these final regulations are in compliance with both Presidential and DOI mitigation policy, which have both been finalized. Comment: The provisions for compensatory mitigation state that it must be based on ‘‘best available science.’’ Please provide a definition for this term. Response: For the purposes of the Eagle Rule, we regard the best available science as scientific data that are available to the Service and that the Service determines are the most accurate, reliable, and relevant for use in a particular action. Comment: It is not clear how compensatory mitigation requirements will or will not apply to federal and other government entities that apply for incidental take permits. Response: Federal and other government agencies applying for an eagle incidental take permit would have to comply with the compensatory mitigation requirements of this rule, consistent with agency authorities. The Service understands there may be some circumstances where an agency does not have the discretion or available appropriations to implement compensatory mitigation and would make appropriate accommodations for these circumstances. Comment: If a separate, distinct agency action benefits eagles, can that action be used or credited towards its compensatory mitigation requirements? Response: Only actions that meet the additionality standards set forth in this rule could be used for compensatory mitigation. Compensatory mitigation must be additional and improve upon the baseline conditions of the impacted eagle species in a manner that is demonstrably new and would not have occurred without the compensatory mitigation measure. Comment: The payment into conservation banks and in-lieu fee programs by a government agency could be problematic and potentially in violation of federal appropriations. Consequently, how does the Service foresee compensatory mitigation being implemented by permit applicants that are federal or state agencies? Response: The Service cannot require a government agency to take an action outside the scope of its authorities. This rule does not assign a preference for any mitigation type. If an agency was E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91530 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations precluded from participating in an approved third-party mitigation program, the agency could implement its own compensatory mitigation. Comment: Take should not be authorized above EMU take limits, regardless of compensatory mitigation. Response: The Service believes that the rigorous standards for monitoring and compensatory mitigation in this rule ensure that authorized take over EMU take limits will be compatible with the preservation of eagles. The Service reserves the right to deny a permit if we determine the specific project is not compatible with the preservation of eagles. Comment: The Service should require compensatory mitigation for all authorized take, including take within EMU take limits. Response: The Service defines ‘‘compatible with the preservation’’ of eagles 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 each species.’’ Based on the Service’s status review of the two eagle species, the Service has determined that the sustainable take rate for golden eagles is zero, while the bald eagle population can withstand the loss of several thousand individuals and still meet established preservation goals. DOI mitigation policy requires that mitigation be tiered to achieving landscape-level goals. The Service has determined that when take is below modeled sustainable take rates, we can achieve our conservation goals for the species without compensatory mitigation. By including the persistence of local populations in the preservation standard, the Service may also require compensatory mitigation if a permittee’s action would threaten the persistence of a local population. Comment: Compensatory mitigation should address project impacts by being located in the same LAP as the project impacts. Response: Authorized projects may affect both resident and migratory individual eagles. Compensatory mitigation for eagle take is still in its infancy, and there are currently limited options to effectively compensate for the loss of eagles. Further limiting those options to the LAP is not practicable to implement at this time. The final rule retains the requirement to site within the same EMU where the take occurred. This allows the Service to target compensatory mitigation to have the greatest benefit to eagles while compensating for the impacts of the authorized project in a biologically VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 meaningful way. For compensatory mitigation that is required to address concerns for a LAP, the Service has a preference for compensatory mitigation projects to be sited in the LAP where the impacts occurred. Projects that raise concerns over a local population would generally require site-specific environmental analysis, including would include consideration of where to site compensatory mitigation. Comment: Habitat conservation is important for eagles. The Service should provide more guidance on how habitat conservation and restoration may be used for compensatory mitigation. Response: While the current primary limiting factors affecting both eagle species are not habitat-based, the condition and availability of habitat is an important factor in eagle conservation. The condition and availability of habitat will likely be increasingly important in the future in light of climate and land-use changes. As with other forms of compensatory mitigation, the Service will continue to work with stakeholders to develop further guidance on how to structure habitat conservation efforts in ways that meet the standards set forth in the rule. Comment: Compensatory mitigation should be implemented prior to the onset of impacts. The Service should allow for flexibility in the timing of mitigation, recognizing that not all mitigation can be provided prior to impacts. Response: Service mitigation policy prefers that compensatory mitigation be implemented prior to project impacts. This is important to document the effectiveness of the mitigation measure. However, requiring compensatory mitigation to be in place prior to project impacts is not always practicable. All compensatory mitigation must follow the standards set forth in this rule, which are designed to ensure that compensatory mitigation is effective and offsets the impacts of the authorized take of eagles. If compensatory mitigation is implemented after project impacts, then it would have to account for temporal loss of the eagles taken, and mitigation ratios would be adjusted accordingly. Comment: Unauthorized take and violations of the law are a law enforcement issue, not a permit issue. Unusually high levels of unauthorized eagle mortality within a LAP should not be a trigger for compensatory mitigation. Response: From a biological perspective, it does not matter whether take is authorized or not; both unpermitted and permitted take result in mortality, and the effects of that mortality on eagle populations is the PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 same. Thus, meeting the Service’s management objective of not causing the extirpation of local populations requires that we consider and take into account existing levels of unpermitted take, and where those levels are excessive, to either not issue a permit or to require mitigation if we believe mitigation can be effective in offsetting additional take in the LAP. The commenter is correct that unpermitted take is also a law enforcement issue, and part of the solution lies in increased compliance. Towards this end, the Service’s Office of Law Enforcement has and will continue to prioritize enforcement of illegal take of eagles. Comment: The Service should not employ a ‘‘practicable’’ standard when evaluating compensatory mitigation. Compensatory mitigation must be designed to effectively offset all authorized take. Response: These final regulations better align compensatory mitigation requirements with DOI and Service policy. Compensatory mitigation is required for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied. Comment: The Service should refrain from establishing an explicit preference for use of in-lieu fee programs, mitigation and/or conservation banks at this time. The Service should continue working with third-party mitigation providers to develop effective mitigation programs and policies governed by equivalent mitigation standards. Response: This rule does not state a specific preference for mitigation type. While there could be advantages to certain mitigation types in the future, like an in-lieu fee program targeting mitigation actions to maximize benefits to eagles, third-party mitigation options are not yet available for mitigating eagle take. This rule clearly states that all forms of compensatory mitigation must meet the same equivalency standards. More detailed guidance and standards for particular mitigation methods will be developed with public input. Comment: The Service should consider allowing mitigation proposed under existing regulatory mechanisms, such as the U.S. Army Corps of Engineers’ Clean Water Act section 404 permitting and ESA section 10 permitting, to be used for eagle mitigation to avoid unnecessary duplication among agencies and programs. Response: The Service has particular mandates under the Eagle Act that differ from requirements under the ESA and U.S. Army Corps of Engineers’ mandates under the Clean Water Act. To the E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES extent that existing mitigation programs meet the standards set forth in this rule and future guidance, they could contribute to compensatory mitigation for eagles. Comment: Tribes are uniquely affected by eagle take permits. The Service should look to tribes with the resources and expertise to support the management of eagles to host mitigation activities, including giving preference for tribal lands for compensatory mitigation projects. Response: The Service understands and respects that tribes have religious and cultural relationships to eagles that are unique, and that the Service has government-to-government consultation obligations with tribes. The Service values its partnerships with tribes and will continue to seek ways to strengthen these partnerships to advance wildlife conservation, including eagle conservation. This rule states that tribal take of eagles is a higher priority than incidental take covered by these revised regulations. Compensatory mitigation for eagles is relatively new, and there are currently only limited options for permittees. It is not appropriate at this time to further narrow the availability of compensatory mitigation projects to any specific land ownership, including tribal lands. However, nothing in the rule precludes the use of tribal lands as sites for compensatory mitigation, and such matters could be appropriate subjects for tribal consultation on individual permits that may affect tribal interests. Miscellaneous—§ 22.26 Comment: With the Service’s small staff and shrinking budget, the commitment to gathering solid population data for eagles at least every 6 years may be impossible to meet. Adjusting eagle take permits every 5 years (whether they are part of a permit given once, or part of a 30-year permit reexamined every 5 years), particularly based on local scale information about eagle populations, is impossible to do if population data are not gathered in a consistent, comprehensive way, making it impossible for the Service to implement the rules in any meaningful way ‘‘consistent with the goal of maintaining stable or increasing breeding populations.’’ Response: The schedule of monitoring proposed in the PEIS balances available dedicated eagle funding in the Service with the technical and logistical demands of eagle monitoring. Under this schedule, eagle monitoring will be conducted annually (not once every 6 years as implied by the comment), but the three major eagle surveys (golden VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 eagle summer, golden eagle winter, bald eagle summer) will be conducted in rotation once each, every 3 years, with reassessments and updates of status every 6 years. Comment: The Service misapplies the term ‘‘take’’ to include injuries or mortalities caused by accidental collisions with wind turbines, since such a statutory construction is inconsistent with the statute’s required mens rea, and generally ‘‘would offend reason and common sense’’ See United States v. FMC Corp., 572 F.2d. 902 (2d Cir. 1978). Response: Operating turbines that incidentally (accidentally) take or kill migratory birds is a violation of the MBTA and the Eagle Act. Collisions with wind turbines are foreseeable and can be avoided, minimized, or mitigated for with the proper implementation of conservation measures. The Second Circuit Court of Appeals in the United States v. FMC Corp. decision cited by the commenter, along with most other courts, interpreted the MBTA to be a strict liability crime for misdemeanor violations, which means no mens rea (mental state) is required to determine guilt See 572 F.2d at 905–08. The United States v. FMC Corp. case dealt specifically with violations of the MBTA and not the Eagle Act, although eagles are also protected by the MBTA. Similar to the MBTA, the Eagle Act requires no mens rea for certain violations, including those that incidental take would fall under. See 16 U.S.C. 668(b). Courts have concluded that, under strict liability, incidental take caused by many different activities violates the MBTA See, e.g., FMC Corp. (hazardous wastewater pond); United States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal. 1978) (improper pesticide use); United States v. Moon Lake Elec. Ass’n, 45 F. Supp. 2d 1070 (D. Col. 1999) (power line electrocution and collisions); Ctr. for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002) (U.S. Navy military training activities); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) (oil extraction equipment). But cf. United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) (oil waste water facilities, but based on the conclusion that the MBTA was primarily enacted to regulate hunting and poaching). Recently, courts have reached similar conclusions with regard to wind-energy operations See, e.g., Pub. Employees for Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1088 n.11 (D.C. Cir. 2016). There is no reason to conclude that courts would reach PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 91531 different conclusions for incidental take of eagles under the Eagle Act. Comment: The revised 30-year eagle rule will allow wind energy facilities to cumulatively kill up to 4,200 bald eagles and 2,000 golden eagles annually with no prosecution. Response: This brief and widely publicized statement distorts the actual facts about the proposed rule in at least four ways. First, it simply ignores the existence of the permitting process and implies the Service will ignore violations by wind companies. Second, the numbers presented for bald eagles are in reality the amount of take that the Service estimates could occur without resulting in a population decline (and the actual number is likely significantly higher; this is a conservative estimate that errs on the side of protection). The numbers do not represent the level of take the Service anticipates authorizing under permits. Third, mention of allowable take of 2,000 golden eagles is completely without basis; the take level for golden eagles is set at zero without offsetting compensatory mitigation. Finally, the estimated sustainable take limits are not allotted to the wind energy industry; the Service issues permits to homeowners and other individuals; local, state, tribal, and federal agencies; and many types of businesses. In fact, the majority of permits that have been issued under the 2009 regulations have been for temporary disturbance or removal of inactive nests for safety purposes. Comment: The Service does not adequately enforce the Eagle Act when it comes to wind power. Companies, therefore, are not deterred from constructing projects in essential habitats of eagles and other migratory birds. Without increased enforcement, there is no reason to assume the new regulations will lead to any greater degree of compliance. Response: Eagle take is prohibited by law, and violations may be prosecuted criminally or through civil enforcement authorities. Which type of enforcement is used depends upon the facts of each situation, including the conduct of a wind energy company in siting and operating wind projects. The Service and the U.S. DOJ have taken enforcement action where and when warranted and will continue to do so. In the last 18 months, the Service has resolved five civil enforcement actions concerning unauthorized incidental take of eagles at wind facilities. However, when investigations are ongoing, information about them is not released to the public. It is understandable that the public is unaware of the enforcement actions being pursued by E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91532 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations the Service’s Office of Law Enforcement. When investigations are ongoing, information about them is not released to the public, or even to other Service programs, until cases are resolved. In this case, the commenter’s statement is just wrong. In fact, just in the last 18 months, the Service has resolved four civil enforcement actions against wind companies. Taken together, the four civil settlements reached over the last 18 months have addressed legacy and interim eagle take at 15 different windenergy facilities, resulting in 10 additional wind energy facilities applying for eagle take permits (5 had applied for permits at the time settlement discussions commenced) and commitments by the wind energy facilities to spend a minimum of $1,855,000 over the next 3 years on research and development of avian detection and deterrent technologies and to pay $55,000 in civil penalties. Comment: The Service should consider an approach to ensure permitting and siting regulations are properly followed. In Osage County, Oklahoma, although injunctions were granted at the federal level against construction of wind turbine projects, lack of enforcement meant construction continued without interference. The Service must clarify and strengthen its approach for instances where eagle permitting regulations are not followed by energy developers or others. Response: The Eagle Act does not directly regulate otherwise legal activities that may result in the take of an eagle or eagles. Specific effects of otherwise lawful activities, including construction and operation of wind facilities, can constitute actions that are prohibited under the Eagle Act, such as disturbance, injury, or killing of eagles. The permit authorization is for the otherwise-prohibited take, which is usually directly caused by the operation of the project. The eagle permit does not authorize the construction of the facility itself. An injunction is an order issued by a court requiring a person to do or cease doing a specific action. An injunction is considered to be an extraordinary remedy and is available only in special cases where the injunction is necessary to preserve the status quo or to require some specific action in order to prevent irreparable injury or damages that cannot adequately be remedied. The Service is not aware of any injunctions currently in effect ordering any wind energy company to cease taking eagles in Oklahoma. The injunction the commenter refers to may be related to federal cases involving the potential intrusion of subsurface mineral rights by VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 construction of wind-turbine foundations at a facility constructed in Osage County, Oklahoma. The cases did not relate to eagles and construction continued because the cases were resolved in favor of the wind company. Comment: The Service has the ability to regulate the wind industry, including influencing siting. For example, if the Service recommended that a project not be placed at a particular site due to high risks to federally protected species, but the developer ignored the recommendation or failed to obtain appropriate permits, then the Service could subject that facility to enhanced scrutiny, including independent monitoring of fatalities and/or unannounced visits by law enforcement. The developer could also be warned that, if protected species are killed, the Service will refer the case to the Justice Department and request prosecution to the greatest extent of the law, including the possibility of temporary or permanent shut down. Comment: Proper siting for wind energy projects and adequate protection for eagles and migratory birds must take a higher priority. There should be no siting of wind turbines in eagle breeding, nesting, and migratory areas under any circumstances. While more stringent and responsible guidelines on proper siting may be more difficult and costly, we contend that this is an instance where the federal government and the Service must stand firm and defend our eagle populations. Comment: The Service is wrong in asserting that it lacks any authority to ‘‘prohibit development in areas that are important to eagles,’’ and that the most it can do, is ‘‘recommend’’ that a company not build its project in a highrisk site. 18 U.S.C. 371 makes it a crime for any person to conspire ‘‘to commit any offense against the United States.’’ The government has relied on this provision to prosecute not only actual ‘‘takings’’ in violation of federal wildlife protection laws, but also the predicate actions necessary to bring such takings to fruition. The government need not wait until the actual taking of an eagle, but may undertake appropriate enforcement action to prevent harm to protected wildlife before it occurs. Response: The Service has been consistent with our message that we focus our resources on investigating and prosecuting individuals and companies that take migratory birds, including eagles, without identifying and implementing all reasonable, prudent, and effective measures to avoid that take. Companies are encouraged to work closely with the Service to identify available protective measures in their PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 avian protection plans when developing project plans, and to implement those measures prior to/during and after construction and operation, including during the siting process. However, if a wind company ignores our advice and develops a project in an area that results in the take of eagles or concerning numbers of other migratory birds or federally protected bats, we can and do investigate and, if appropriate, pursue appropriate enforcement action. The Service and DOJ have taken enforcement action where and when warranted using the enforcement authorities available to them and will continue to do so. Comment: How is the Service going to find out if protected species have been taken since it relies solely on the regulated industry to volunteer that they have broken the law? The wind energy industry (which is already paying for their own studies) should contribute to a fund that the Service will use to hire independent experts to conduct preconstruction risk studies and postconstruction bird and bat mortality studies. Response: We agree that independent third parties reporting directly to the Service should monitor take under longterm permits, and we have incorporated this requirement into the final regulations. Comment: The regulations should include a requirement that all baseline and post-construction data on wildlife will be made fully available to the public as soon as possible. Lack of transparency is a pervasive problem. Reports of baseline studies and of impacts monitoring at wind projects are increasingly kept confidential. These data pertain to public trust resources, and should not be kept confidential. Comment: The Service should establish mechanisms to automatically provide all data and reports, including raw data collected on-site, to the public in real-time and as soon as it is available. Comment: The Service should require that all monitoring data (reports and raw monitoring data) be submitted electronically to a publicly available database. Federal agencies are moving towards electronic reporting as evidenced by the Environmental Protection Agency’s (EPA’s) ‘‘Next Generation Compliance’’ initiative. The Service should develop a public electronic portal/database from which it can track permit compliance, authorize take across populations, and publish proposed and final permitting decisions. This portal would allow stakeholders and regulators to quickly search permits and quickly access all available E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations monitoring reports and 5-year reviews. This approach would not only facilitate transparency but also provide a valuable tool for its staff to track permit compliance.’’ Response: The permit regulations already contained the provision that all mortality data will be available to the public prior to this rulemaking. We will post cumulative reported mortality data that is summarized to a state and flyway level on a Web site that can be viewed by the general public. We will consider posting pre-construction (or prepermitting) data that we require as part of the permit application for projects that receive eagle take permits. Comment: The proposed rule is focused on eagle breeding populations; however, the eagles killed in wind resource areas are not necessarily participants in breeding populations at the times of their deaths. Response: The proposed rule did not focus on breeding populations, and in fact one aspect of the proposal, to adopt Flyways rather than maintain the current EMUs, was introduced to better account for non-breeding season movements. The Service’s population size estimates, sustainable take rate estimates, and take limits all apply to eagles across all age classes, both sexes, and throughout the year. Even the LAP analysis, which does focus heavily on breeding eagle densities, is not intended to only be protective of breeding populations, as explained in the Status Report on page 27. Comment: The Service should provide more clarity and transparency concerning data collected concerning causes of eagle mortality in the United States. As the agency responsible for the National Eagle Repository (NER), the Service is in a unique position to obtain, track, and disclose data surrounding eagles being sent to the repository. Disclosure of these data would provide a necessary starting point to check the accuracy of Service priorities regarding eagle mortality in the United States. Comment: Tribes should have access to eagle injury and death reporting related to their historic reservation areas to provide for better collaboration regarding eagle incidents. Eagle injury and death incidents should be coordinated with tribal eagle research facilities as a collaborative measure to ensure improved data and research related to wind turbine impacts. Response: The Service is in the process of developing a database to centralize and grow the dataset on injury and mortality incidents involving eagles and other birds across the nation. This will include data on any eagles recovered by, reported to, or delivered VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 to the Service and/or any partners who data share with the Service, and will include eagles that go on to be sent to the NER. The database is still being populated with a number of historical records and prepared for use by others outside of the Service, but is anticipated to be fully functional by the end of 2017. Once the database is populated and fully operational, we do anticipate that some level of information will be made publicly available, along with information on the role these data play in helping the agency address and research impacts to eagles and other birds. It is important to note that the Service will not be depending solely on the data collected in this database to accurately depict the relative causes of eagle and other bird mortality across the landscape. While some of the data collected in the database should help to inform these questions, there are targeted, structured studies that are more useful for this purpose. A list summarizing these studies is available upon request, but a good example is a study the Service is conducting that involves using the fates of a sample of satellite-tagged eagles to estimate the importance of different mortality factors, as described in the Status Report. We note that many Native American tribes have been active participants and collaborators in that study, and that collaboration has greatly improved the extent and scientific quality of the findings. Comments: The Service has stated that: ‘‘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 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.’’ That statement strongly suggests that the Service will accede to the wishes of companies that desire to shield from the public their impacts on public trust resources—which is hardly consistent with the purposes of the Eagle Act, MBTA, or FOIA. Any wind energy company could declare that disclosure of eagle kill data could hurt its bottom line or is somehow ‘‘confidential’’ business information, with the result that virtually all eagle mortality data will likely continue to PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 91533 remain unavailable to the public and concerned conservation organizations. Response: Under the FOIA’s Exemption 4, the Service independently determines whether submitted data is commercial information not subject to disclosure (confidential business information), whether or not it is marked as such by the submitter. A submitter cannot simply insulate information from disclosure under FOIA by marking it as privileged or confidential and expect the Service to accede without an independent analysis. Also, there is a distinction between ‘‘voluntarily submitted’’ records and records that are required to be submitted, and in the language quoted by the commenter, we were talking about other birds in addition to eagles. Under eagle take permits, submission of eagle mortality information is not voluntary, and our regulations, both current and those made final with this rule, require data on permitted eagle mortality to be publicly available. Comment: While tribal members are required to apply for and receive individual permits from the Service to even possess eagle feather or parts— despite the Constitutional rights and religious freedoms of tribal people that have long been acknowledged in the law—the Service intends to issue permits for lethal take of eagles to the wind industry for up to a 30-year term, not to protect eagles as the Service now suggests, but rather to facilitate a purely commercial activity by wind developers. The requirement that permits for traditional religious use of tribal members be renewed annually imposes administrative and cost burdens on the practice of religion, as well as on the Service’s limited resources. The Service should consider issuing take permits for Native American religious use in perpetuity, or at a minimum for the 30-year term the Service proposes for non-religious incidental take. The inequities between the durations of these two permits warrant staying the final incidental take permit regulations until the Service can address this very serious question. Response: We are aware that the 1year permit duration for permits to take eagles for religious use may impose an unnecessary burden on some tribes, and we are considering revisions to those permit regulations to address a variety of issues, including the permit duration. We will consult with tribal governments before proposing any revisions. Comment: The proposal lacks meaningful or specific guidance as to how the Service will conduct tribal consultation with potentially affected E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91534 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Indian tribes on a project-by-project basis when the Service receives permit applications. There is no assurance the Service will engage in proper consultation with affected Indian tribes. Tribes are likely to be cut out of the permitting process, depriving the Service of valuable traditional ecological knowledge and tribal data about the historic and current presence of eagles in the area. Response: Where issuance of a permit has the potential to affect Native American tribes, we will notify the potentially affected tribes and provide them with the opportunity to consult. If tribes have valuable traditional ecological knowledge they will share, we will welcome that information. The Service relies on a numerous guidance documents to inform how it consults with tribes, including Executive Orders; Presidential memoranda; DOI Secretary’s Orders; and policies of the DOJ, DOI, and the Service. We do not see any advantage to tribes of incorporating all this guidance into the eagle permit regulations, and the result would be either a repetition of information already provided or a summarized (and, therefore, more generalized and less helpful) version of the existing authorities and guidance. Further, as with any federal action warranting tribal consultation, the specific circumstances of the actions will affect the process and parameters of the consultations. Additionally, individual tribes have different preferences for how they wish the consultation process to proceed. For all these reasons, we did not address specific protocols for consultation with tribes. Comment: The Service should mandate that each permit application identify affected tribes in the requisite eagle conservation plan. Consultation with tribes should occur at every stage of the permitting process. The regulations should ensure that affected tribes receive notice by sending a copy of each eagle take permit application to tribes. If this is not feasible due to legal, confidentiality, or other concerns, tribes should at least receive notice of an application and information necessary to allow for effective and meaningful consultation. Also, affected tribes should be included in the NEPA analysis of each permit. To ensure increased participation and input by tribes in the NEPA process, affected tribes should be invited to serve as cooperating agencies under NEPA. Further, the Service should send a copy of an eagle take permit to all affected tribes upon the issuance of that permit. VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 Comment: Tribes that will be affected by eagle take authorized under a particular permit must be identified and contacted to facilitate participation in the permit decision-making process. The Service should cast the widest net possible to identify affected tribes, which the regulations should broadly define to include: (1) All tribes with an interest in eagles in the vicinity of a wind energy project; or (2) all tribes that may have interest in eagles within the relevant flyway. Response: We maintain our commitment to consulting with interested tribes as early as possible in the permitting process when issuance or review of individual permits may affect a tribe’s traditional activities, practices, or beliefs. We do not think it is appropriate to require a permit applicant to identify potentially affected tribes. Instead, it is incumbent on the Service to make that determination. Thus, we will continue to rely on our trust relationship and open communication with each federally recognized tribe to help us determine when a project may affect tribal interests. Because of the myriad differences in the interests of federally recognized tribes regarding eagles, we do not find it appropriate to limit or circumscribe consultation with individual tribes by outlining a more specific framework for the consultation process. Each consultation will depend on the specific needs and concerns of the affected tribe. In some cases, it may be appropriate to consult with a tribe regarding its interest in projects occurring in a region or flyway. In other cases, it may be appropriate for a tribe to act as a cooperating agency for the NEPA process for an eagle permit. Regardless of any consultation process, the effects of an eagle permit on tribal cultural, religious, or socioeconomic interests will be analyzed in the appropriate NEPA document for that permit. Comment: The Service should clarify that projects that attempted in good faith to comply with eagle take regulations, especially those that also applied for permits but were unable to obtain a permit due to difficulties inherent in the current permit program, should not be required to undergo additional mitigation prior to being issued a take permit under the new regulations. Consistent with the template eagle settlement agreement framework, the Service should clarify in the eagle permit program that not all such projects will need to enter into a settlement agreement prior to being granted a permit; instead, the Service will, in determining whether prior PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 unpermitted take requires any additional actions, take into consideration the nature, circumstances, extent, and gravity of the acts with respect to the degree of culpability and cooperation, history of noncompliance, levels of past take, and efforts to reduce take. Comment: The proposed rule implies that applicants would need to take corrective actions and/or make payments for all takes over the life of the project, which, for transmission line providers, may have been in operation since the early 1900s. It is unreasonable and ineffective to require that those seeking a voluntary permit must ‘‘settle up.’’ Voluntary applicants would then need to incriminate themselves to obtain an eagle permit, creating a strong disincentive to seek permits. Comment: The Service should reconsider its position that applicants may be required to address past take by entering a settlement agreement; why does historic take need to be taken into account now considering that take occurring prior to 2009 is already reflected in the bald and golden eagle population status? Response: A permit can be issued without resolving unauthorized past eagle take; however, the applicant continues to be subject to an enforcement action at any time for unpermitted prior take of eagles. Such decisions will be made on a case-bycase basis considering the totality of the circumstances. Project proponents have been encouraged to consult with the Service early and often to avoid and mitigate migratory bird and eagle take to the extent practicable, and to apply for an eagle take permit where take cannot be avoided. The Service’s goal has been to work closely with project developers to ensure unlawful (unpermitted) take does not occur. However, many entities have chosen to avoid the Service’s involvement all together, or only engage with the Service after eagles were killed and a law enforcement investigation began. A determination by the Service whether to pursue criminal or civil enforcement of prohibited eagle take and, if so, whether it is appropriate to resolve any such enforcement through a settlement will consider the conduct of a company in siting and operating projects. Settlement agreements may be appropriate under either the criminal or civil provisions of the Eagle Act. Finally, in response to the last comment, the statute of limitations for criminal and civil enforcement actions is five years and we would not expect enforcement of take prior to 2009. Comment: In the original 2009 rulemaking, existing projects were E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations considered part of the baseline and were not required to implement any additional mitigation requirement for take when obtaining a permit. The Service should consider a similar approach here for existing projects that have already invested significant resources in their projects and are meeting the recommended measures outlined in the Wind Energy Guidelines (WEG) and ECPG. Similar to the analysis for historical tribal take for religious use, the Service should acknowledge that take from existing infrastructure is part of the baseline. Authorization of such take should not affect take limits established by the Service. Many existing power line retrofit programs are improving the baseline condition by reducing mortalities. Response: Ongoing incidental take that has been occurring on a relatively steady basis since before 2009 is part of the baseline and therefore does not require offsetting compensatory mitigation. The Service will take into consideration the conservation measures already in place in developing permit conditions for these sources of take. Comment: We agree with the Service’s decision to decline to require the following measures at wind energy projects: Increase in frequency of turbine site inspection to search for physical evidence of mortality/injury event; development and employment of video surveillance and other technologies (impact alarms); and/or providing onsite personnel to facilitate monitoring of larger wind farms. These practices are clearly not demonstrated, effective best management practices. Response: We appreciate this opportunity to clarify our position. We have not made any final decisions about the use of such measures; we merely noted that they have not yet been shown to be effective. Comment: The standard language on permits stating that the authorization granted is not valid unless the permittee is in compliance with all other federal, tribal, state, and local laws and regulations is concerning. The language creates the result that some federal permits could be of little value due to state restrictions on issuing incidental take permits for ‘‘fully protected’’ species, such as in California. The Service should consider alternative language that would state that the applicant is responsible for ensuring compliance with other federal, state, and local law. Comment: Entities seeking a federal permit to take bald or golden eagles may not be able to obtain a state-level permit VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 to be in compliance with state laws. This could potentially put the state fish and wildlife agencies in the position of holding up the issuance of a federal permit or revocation of a permit, due to the lack of authority or ability to issue a state-level permit. The regulations should be revised to include a framework or pathway within the permit structure that requires coordination between the Service region, the state fish and wildlife agency, and the applicant to discuss issuance of any state permits. This will be imperative in states where there is no authority or process to issue a state-level permit to reduce the potential conflict between the state agency and the permit applicant. Comment: The provision that permits can be issued to or valid only for ‘‘otherwise lawful’’ activities should be removed. It is built into the ESA statutory language, but is not present in the Eagle Act. The concept under both ESA programs and the Eagle Act has been misconstrued and inappropriately applied. Specifically, it can cause confusion, leading to delays and to occasional litigation over permit processing and issuance. Response: We have revised the language that said the federal Eagle Act authorization is not valid if a permittee is not in compliance with the laws and regulations of other jurisdictions. The new language states: ‘‘You are responsible for ensuring that the permitted activity is in compliance with all Federal, tribal, State, and local laws and regulations applicable to eagles’’ (§ 22.26(c)(11)). When seeking a federal permit, persons should do their due diligence to determine whether bald and golden eagles are protected under other laws and whether their action may require additional authorizations. We will defer to state, tribal, and local authorities’ interpretation of their own laws and regulations and will continue to work closely with those entities in providing any requested assistance in enforcing non-federal laws and regulations. Comment: The timeframes associated with processing a permit application were initially underestimated. Only one eagle permit has been issued by the Service at the time of this letter. The final regulations should contain processing timeframes. Response: The Service has issued over 400 permits under the 2009 permit regulations. The false assertion that we have issued only one permit has been made repeatedly by one industry for which we have issued only one permit. We are not including permit issuance timeframes in the regulations because PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 91535 the time it takes to issue a permit varies enormously depending on the scale and complexity of the activity that will result in take, the need to prepare an analysis under NEPA, the quality and completeness of the data and other information provided by the applicant, and many other factors. Comment: We recommend more realistic penalties for violations be instituted. The Service should review and address enforcement actions and measures in the context of eagle take violations (under both the MBTA and the Eagle Act). Presently, it appears that resources are inadequate for enforcement in the field, as well as a reticence for the Service and the courts to prosecute violators. Response: The Service, as part of DOI, is an agency in the Executive Branch of government. Civil and criminal penalties tied to federal laws are set in statute and those statutes are set by the Legislative Branch of government (Congress). However, in 2015 Congress mandated that federal agencies update penalties for civil violations of statutes they are responsible for enforcing. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires agencies to adjust the level of civil monetary penalties and to make subsequent annual adjustments for inflation. See Public Law 114–74, 701, 129 Stat. 584. The Service subsequently updated civil penalty amounts for all statutes it enforces, including the Eagle Act. See 81 FR 41862 (June 28, 2016). The maximum civil penalty under the Eagle Act increased from $5,000 to $12,500 for any violation occurring after July 28, 2016, and the new penalty will be adjusted annually for inflation. See 50 CFR 11.33 & 16 U.S.C. 668(b). When issues of take are brought to the attention of the Service, they become an investigative priority for the Service. If it appears that the take violated federal law, the results of the investigation are brought to the attention of either the DOJ or DOI’s Office of the Solicitor, for review and criminal or civil prosecution. The DOJ decides, in consultation with the Service and the Office of the Solicitor, whether or not to prosecute violations of federal law. Comment: In the proposed rule, the Service provided a response to comments that implies requiring a Bird and Bat Conservation Strategy (BBCS) is consistent with its regulations: A BBCS is a vehicle created by the 2012 landbased WEG. Requiring a BBCS contradicts the voluntary nature of the WEG, and also contradicts the WEGcreated concept of the BBCS. The Service should clarify in the preamble E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91536 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations to the final rule that a BBCS (or collection of documents that serve the function of a BBCS) is voluntary. Response: Preparation of a BBCS is voluntary under the WEG. Preparation of an eagle conservation plan is voluntary under the ECPG. Neither the WEG nor the ECPG confers the take authorization necessary to shield an entity from enforcement for prohibited take under the Eagle Act. A permit is the necessary mechanism to confer the authorization needed to take eagles, and permits require avoidance and minimization measures. Some applications for eagle permits (e.g., for most wind energy facilities and other projects that are large-scale and have the potential for significant or ongoing impacts) will require essentially all the information and commitments that are generally found in a BBCS. In those cases, the compilation of information submitted need not be referred to as a ‘‘Bird and Bat Conservation Strategy’’ (particularly if take of bats is not likely) or an eagle conservation plan, but whatever it is called does not change the requirement that certain information necessary for the Service to determine that the applicant will undertake appropriate avoidance and minimization measures must be submitted by the applicant. Comment: The Service should clearly define for its staff that the scope of the NEPA analysis should only include an analysis of the environmental effects of the issuance of an eagle permit and its associated effects. As applying for the permit is voluntary, the general siting, construction, and operation of a project should fall outside of the typical NEPA analysis. Response: We agree that the scope of the NEPA analysis should include only an analysis of the environmental effects of the issuance of an eagle permit and its associated effects, including the effects of mitigation measures. Because nearly all of the environmental impacts associated with issuance of an eagle permit relate to eagles, the analysis already included for these species should already be covered by the PEIS for the majority of permits. Among the exceptions would be most cases where the 5% LAP take limit is exceeded and whenever there exist extraordinary circumstances that require an exception to a categorical exclusion as defined under NEPA. As such, any projectspecific NEPA analysis should truly be circumscribed, as a majority of the necessary analysis has already been covered. The impacts of construction and operation may be part of the impacts analysis to the degree that the permit covers the effects of those VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 activities, including the mitigation for the permit. Thus, the environmental effects of any permit conditions and any modifications to the proposed construction or operation of the project triggered by the permit review and issuance process should be analyzed as part of the NEPA process. We also note that, although applying for a permit is voluntary in nature, take of federally protected species such as eagles is a violation of federal law unless that take has been authorized under a permit or regulation. Comment: The Service invokes the Eagle Act statutory language that refers to the ‘‘protection of . . . other interests in any particular locality’’ as the foundation for its proposed regulation. However, promotion of a national renewable energy industry is not an ‘‘interest’’ that relates to a ‘‘particular locality.’’ Response: The fact that the permit program overall may enhance a national interest does not mean it violates the Eagle Act. Individual permits are not being issued to a national interest. As a comparison, preservation of eagles is also a national interest, and we can issue a permit that would benefit eagles in any particularly locality. In fact, a specific town, city, county, or set of coordinates at which one or more wind turbines is located would constitute a ‘‘locality,’’ which accurately reflects the scale at which the Service issues individual permits. Comment: The language relating to ‘‘resource development and recovery operations’’ indicates that, to the extent Congress considered that the Service could use incidental take permits issued under the Eagle Act as a tool to promote a national industry, the agency’s authority to issue them is specifically limited to ‘‘the taking of golden eagle nests.’’ Response: This comment confuses two different provisions of the Eagle Act that were established by Congress in separate amendments to the Act, one in 1962 (‘‘for the protection . . . of agricultural or other interests in any particular locality’’ (Pub. L. 87–884, October 24, 1962)), and one in 1978 (‘‘the Secretary of the Interior, pursuant to such regulations as [s]he may prescribe, may permit the taking of golden eagle nests which interfere with resource development or recovery operations’’ (Pub. L. 95–616, November 8, 1978)). The two clauses provide the Secretary authority to issue permits for different activities and are separated by multiple clauses addressing separate types of entities and interests that may receive permits. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 Comment: The proposed regulation is inconsistent with the 1916 convention with Canada aimed at conservation of migratory birds and its 1995 protocol (‘‘U.S.-Canada Convention’’). Article II.3 of the Convention specifies that ‘‘the taking of migratory birds may be allowed at any time of the year for scientific, educational, propagative, or other specific purposes consistent with the conservation principles of th[e] Convention.’’ However, the rule is not aimed at advancing ‘‘scientific,’’ ‘‘educational,’’ or ‘‘propagative’’ purposes. Also, none of the conservation principles listed in the Convention includes promotion of wind energy or any efforts aimed at addressing climate change. Response: This regulation does not ‘‘promote’’ wind energy; it sets forth a suite of new and amended provisions to increase protection of eagles and streamline the permitting process to encourage any project proponent that may take eagles to apply for permits and thereby implement conservation measures to reduce and offset projected take of eagles that otherwise would not be implemented. The regulatory amendments are consistent with the preservation of eagles under the Eagle Act, which is a standard that potentially provides more protection to eagles than the MBTA or any of its underlying treaties. Moreover, the Canada Convention does not prohibit the Service from authorizing incidental take of eagles or other migratory birds by industrial activities. As an initial matter, the Canada Convention itself does not include eagles in the list of bird species and families it applies to; the treaty with Mexico covers the avian family that includes eagles, and the treaty with Russia specifically includes bald and golden eagles. Second, as the commenter notes, the Canada Convention, as amended by the 1995 protocol, authorizes the parties to allow the taking of migratory birds for ‘‘other specific purposes consistent with the conservation principles of this Convention.’’ The 1995 protocol called for a comprehensive approach to the conservation and management of migratory birds, outlining several conservation principles and the means to pursue those principles, including monitoring, regulation, and enforcement. See Article II. Several court cases have confirmed the Service’s authority to regulate and enforce the MBTA’s take prohibitions in the context of incidental take (see, e.g., United States v. FMC Corp., 572 F.2d 902 (2d. Cir. 1978) (holding that it is appropriate for the Service to use enforcement E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations discretion to police activities that incidentally take migratory birds); Publ. Employees for Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1088, n. 11 (D.C. Cir. 2016) (noting that an offshore wind facility could apply for a permit to cover its activities likely to cause incidental take)). Third, Congress enacted legislation directing the Service to specifically authorize incidental take caused by military readiness activities, signifying that Congress both interpreted the MBTA to otherwise prohibit incidental take and viewed the incidental take authorization as consistent with the underlying treaties. See Public Law 107–314, 315, 116 Stat. 2458 (2002); and 50 CFR 21.15. Comment: If the Service actually believes any additional anthropogenic mortality cannot be sustained by golden eagles, how can they presently be giving out a permit for the take of 40 nestlings by the Zuni Tribe? The Zuni Tribe has been getting a permit since 1987; that is a long track record of very local mortality. Response: The permit referenced by this commenter is actually issued to the Hopi, not the Zuni, Tribe. Region 2 of the Service has fully analyzed the effects of this permit in an April 2013 environmental assessment (U.S. Fish and Wildlife Service 2013b). That document found the actual take, which averages around 23 annually, is biologically sustainable under the Service’s management objective for golden eagles. It is also important to recognize that the Hopi take of golden eagles pre-dates all other forms of recorded anthropogenic mortality and is a protected activity under the Religious Freedom Restoration Act (42 U.S.C. 2000bb et seq.). The Service assigned priority over all but emergency take of eagles to Indian religious take in the 2009 Eagle Rule; thus the Service has an obligation to reduce other forms of more recently instituted anthropogenic take before it impacts the Hopi by reducing their take. Comment: The regulations should include an explanation of how the Service intends to implement the United Nations Declaration on the Rights of Indigenous People (‘‘UN DRIP’’) relative to the issuance of 30year take permits for eagles. Relevant provisions of the UN DRIP that should have been discussed include, among other things, the impact of the following Articles on the Service’s take regulations: Article 19 (requiring ‘‘free, prior and informed consent’’ of indigenous peoples where the United States adopts or implements legislative or administrative measures which may affect them); Article 24 (clarifying, inter VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 alia, that indigenous peoples have ‘‘the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals’’); and Article 25 (emphasizing the right of indigenous peoples to ‘‘maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources’’). Response: The United States did not originally vote in favor of the United Nations Declaration on the Rights of Indigenous Peoples in 2007, but in 2010, President Obama announced U.S. support for the Declaration by Presidential Proclamation while noting that the Declaration is not legally binding or a statement of current international law (see Announcement of United States Support for the United Nations Declaration on the Rights of Indigenous Peoples, U.S. Dept. of State (2010), available at: http:// www.state.gov/documents/organization/ 184099.pdf). The Service will continue to consult with federally recognized tribes in the spirit of the Declaration when any potential authorization of eagle take may affect tribal interests, consistent with the Presidential Proclamation and the Service’s Native American Policy at 510 FW 1. The Federal Register publication of 50 CFR 22.26 in 2009 sets forth our policy with respect to consultation and NHPA compliance when issuing permits (74 FR 46836, September 11, 2009, pp. 46844, 46873, 46874). Comment: The rule needs more clarity as to when a permit is required. For example, should items such as the distance from a known natal area, significant presence of eagles based on telemetry data or similar measures, or the density of eagles in the immediate vicinity of the proposed project be made into clear triggers for consultation? Furthermore, there is no specific guidance as to the type of projects that may need to apply. Would, for example, a 10- to 12-story building in a valley with minimal documented flyovers be treated the same as the conversion of a small jeep road to a paved thoroughfare? If the newly paved road brings significant and ongoing human disturbance to a relatively pristine location in close proximity (say within 15 miles) of known eagle nests or natal areas, would both have the same consultation need? Response: A permit is required to be in compliance with the Eagle Act if take of an eagle occurs. It is difficult to predict with certainty exactly what PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 91537 precise circumstances will result in an eagle being taken. However, we have developed guidance documents to help people understand when their activities may take eagles. Guidance for how to avoid disturbance of bald eagles can be found in our 2007 National Bald Eagle Management Guidelines. It is important to note that some of the recommended distance buffers in those guidelines should be increased in more open and less forested landscapes. We are working on official guidance for avoiding disturbance of golden eagles. Comment: Projects with eagle permit applications that have been in process prior to release of the final regulations should not be subject to new rule provisions unless an applicant volunteers to incorporate the new provisions. Such changes would significantly extend the time to provide project information, increase Service staff time, drive up costs further, delay permit processing, and adversely affect project financing very late in the financing process. These applications should be considered first in line for the purposes of consideration of the LAP threshold. Many of the sites did not perform 2 years of preconstruction eagle use monitoring because they believe they are low risk. If these rules are finalized, they should not be required to perform additional monitoring. Response: The final regulations contain provisions that allow applicants to obtain coverage under all of the provisions of the prior regulations if they submit complete applications satisfying all of the requirements of those regulations within 6 months of the effective date of this final rule. However, with respect to one of the examples used by the commenter, we note that the Service guidance since 2011 has recommended 2 or more years of pre-construction eagle surveys, so any prospective wind projects conceived since then should have been aware of this. Comment: We believe additional clarification is needed regarding whether the proposed rule is retroactive. Response: The regulations are not retroactive, and we are incorporating a 6-month ‘‘grandfathering’’ period after the effective date of this rule (see DATES, above, and § 22.26(i), below) wherein applicants (persons and entities who have already submitted applications) and project proponents who are in the process of developing permit applications can choose whether to apply (or re-apply) to be permitted under all the provisions of the 2009 regulations or all the provisions of these final regulations. E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91538 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Comment: Existing HCPs that include golden eagle coverage should be ‘‘grandfathered’’ in without fear of these proposed regulations being interpreted to undermine the HCP take authorization by imposing additional mitigation requirements. These HCPs were designed to assure permittees there would be ‘‘no surprises,’’ that they were not committing to conservation measures, only to have the rules changed on them part way into the permit term. The final eagle permit rule must exempt from the final rule any eagle ESA incidental take permits whose applications have been submitted prior to the effective date of the final rule. The regulations should also exempt Natural Resource Community Plans and HCPs that address eagles in anticipation of obtaining ESA incidental take permits. Response: In 2008, we issued a final rule addressing incidental take authorization under the ESA and Eagle Act (73 FR 29075, May 20, 2008). This rule established regulations under 50 CFR 22.11 to provide take authorization under the Eagle Act to ESA section 10(a)(1)(B) permittees, where bald or golden eagles are included as covered species, as long as the permittee is in full compliance with the terms and conditions of the ESA permit. Compliance with the terms and conditions of the permit includes not exceeding the amount of incidental take that was authorized. Failure to abide by the ESA section 10 permit requirements that pertain to eagles may, however, potentially void the Eagle Act take authorization for these permits, and result in permit revocation. In addition, the 2008 rule included a provision clarifying the criterion for permit revocation for eagles: Whether the activities covered under the permit are compatible with the preservation of the bald or golden eagle, instead of the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv). For ESA permits already in effect, the conservation measures required to cover bald and golden eagles under previously issued ESA incidental take permits were deemed to be compatible with the conservation standards of the Eagle Act. This final rule does not modify those 2008 regulations. Thus, the terms and conditions of existing ESA section 10 permits where eagles were included as covered species, and where the permittee is in compliance with the conditions of ESA permit, are not affected by this rulemaking. In contrast, ESA incidental take authorizations for eagles that are not already permitted are subject to the standards of permits VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 issued under the Eagle Act incidental take permit regulations, due to the Eagle Act requirement that any permit issued must be ‘‘compatible with the preservation of eagles’’ and the Service’s 2009 interpretation and application of that preservation standard under the Eagle Act. On May 10, 2011, the Service Director issued a memorandum to the Regional Directors clarifying that the terms and conditions of new ESA incidental take permits that cover eagles, including the mitigation requirements, must meet the issuance criteria of the Eagle Act regulations at 50 CFR 22.26. The memorandum reads, in part: ‘‘[T]he Service publically committed through its Finding of No Significant Impact for the new Eagle Act regulations that it will not issue any take permits for golden eagles beyond historically authorized take levels, unless the impacts to golden eagles can be completely offset’’ to achieve no net loss to the breeding population. This policy applies to permits issued under the ESA as well as the Eagle Act. If bald or golden eagles are included as covered species in a section 10 permit, the avoidance, minimization, and other mitigation measures in the project description and permit terms and conditions must meet the Eagle Act permit issuance criteria of 50 CFR 22.26.’’ Therefore, in order for the Service to confer Eagle Act take coverage through the ESA section 10 permit program, ESA HCPs must meet the Eagle Act standards for permitting, including mitigation requirements. We believe it is appropriate to allow potential applicants who are well along in the planning process to move forward under the existing regulations. Therefore, we are taking a similar approach for potential ESA section 10 applicants as we are for potential Eagle Act permit applicants, in that applicants who submit an ESA section 10 application that includes take coverage for bald or golden eagles within 6 months of the effective date of this rule may choose whether the standards of 50 CFR 22.26 that were in place prior to that effective date will apply to their permits or the standards of these final regulations. Comment: The Service encourages applicants to include bald and golden eagles as covered species in HCPs developed for incidental take permits under the ESA. The final eagle rule should make clear that Eagle Act permits would satisfy the requirements under the ESA regulations at 50 CFR part 17 for future permittees that are seeking permit coverage for a single PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 project for take of species covered by the ESA and the Eagle Act. Response: Eagle Act permit coverage that is not conferred under issuance of an ESA section 10(a)(1)(B) incidental take permit associated with an HCP explicitly does not satisfy the requirements under the ESA regulations at 50 CFR part 17 for permit applicants seeking permit coverage for take of species prohibited by the ESA and the Eagle Act. Simply put, an Eagle Act permit issued under 50 CFR 22.26 does not provide take authorization under the ESA. Comment: Affected tribes should be notified immediately upon receiving notice of a take and invited to take culturally appropriate action with respect to eagle remains with which the tribe has a geophysical association. Response: Regarding allowing affected tribes to take culturally appropriate action with respect to remains of eagles taken under permits, much depends on what those cultural practices are. For example, we cannot authorize tribal rites on private land, and we also will not allow tribes to take direct possession of the eagle remains. We understand the desire of some tribes to retain eagles found on or near Indian lands; however, to maintain a fair and equitable distribution of eagle feathers to all federally recognized tribes, the NER must fill orders on a first-come, firstserved basis, and require that all usable eagles be sent to the NER for distribution in this manner. Any eagles diverted from coming to the NER would decrease the number of eagles available to other tribal members, and may unfairly impact some tribes. Comment: Proposed new standards for ‘‘required determinations’’ found at 50 CFR 22.26(f)(2)–(8) are so vague as to render the refusal of the Service to issue a permit wholly discretionary, and unreviewable by judicial authority. A protected local interest such as a utility must be reasonably allowed to receive a permit in order to meet the statutory objective of continuing its activity without fear of enforcement. While certain simple, objective, and inexpensive criteria are appropriate, the proposed criteria are generally vague or overreaching to the extent of flouting the statutory purpose of the permit program for protected local interests. Any protected interest should not have to satisfy the population requirement because the statute mandates that a permit program must ‘‘permit the taking of such eagles for the protection of . . . other interests in a particular locality . . . .’’ [emphasis added]. In such instances, the statute clearly requires that protected activities shall be E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations permitted over the interests of the birds in order for those activities to be conducted without fear of enforcement. [This comment also specifically objected to provisions of § 22.26(f)(2)– (8) related to the LAP, stipulations that permit issuance take into account ongoing criminal or civil actions, and the priority afforded to take to satisfy Native American religious needs.] Response: We disagree with the commenter that the required determinations in § 22.26(f) are ‘‘generally vague or overreaching to the extent of flouting the statutory purpose of the permit program for protected local interests.’’ The preamble to the proposed rule explains most of the criteria added to 50 CFR 22.26(f) in this rulemaking in detail and clarifies how the Service will determine whether an applicant is in compliance. The proposed required determinations are consistent with the statutory purposes of the Eagle Act. As we stated when first promulgating this regulation in 2009, the Service interprets the statutory phrase ‘‘for the protection of . . . other interests in any particular locality’’ as enabling us to accommodate a broad spectrum of public and private interests that might incidentally take eagles, as long as we can determine that any authorized take is compatible with the preservation of eagles (see 74 FR 46836, September 11, 2009, p. 46837). We do not agree with the commenter’s interpretation that the ‘‘protection of . . . other interests’’ language requires the Service to ensure the protection of other interests without balancing those interests with the management and protection of the species the statute was enacted to protect. The commenter takes issue with the definition of ‘‘LAP,’’ referenced in proposed § 22.26(f)(2), as being arbitrary and vague, and the commenter misconstrues the effect of exceeding the LAP threshold as requiring the rejection of a permit application. This required determination does not compel us to reject an application when take in the LAP exceeds 5%; it instead specifies that any take within the limit is compatible with the preservation of eagles. Take above the limit would require further environmental analysis over that conducted in the PEIS for this rule. That analysis might show that no additional action is required for the permit to be compatible with the preservation of eagles, or it may show the take could be compatible with additional action. Examples of such additional actions could be to require implementation of additional compensatory mitigation to offset take above the 5% LAP threshold or, for VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 existing projects within the LAP area, to require measures that reduce the project’s take when they seek incidental take permits. Many commenters, in particular state agencies and federally recognized tribes, strongly support the decision to ensure management and protection of not only the national population of bald eagles and golden eagles, but also regional and local populations. The LAP analysis, along with the regulatory requirements contingent upon that analysis, is one of the primary methods by which we can properly manage and adequately protect local eagle populations and ensure that cumulative effects do not become significant. To the extent the commenter argues that denial of a permit on any of the grounds listed in § 22.26(f) would be unverifiable and arbitrary, the general permit regulations contain review procedures at 50 CFR 13.29 setting forth the administrative remedies an applicant may pursue if a permit application is denied for any reason. These administrative remedies require the issuing officer to state the reasons for permit denial and to describe the evidence used to reach that decision. A permit applicant would also be free to pursue judicial review of a permit denial once all administrative remedies are exhausted. With regard to proposed § 22.26(f)(8) (§ 22.26(f)(7) in this final rule), which requires the Service to determine, before issuing a permit, that issuance of the permit will not interfere with an ongoing civil or criminal action concerning unpermitted past eagle take at the project, one element of civil and criminal cases is establishing that take of eagles is not permitted, requiring coordination between the Service’s law enforcement and migratory bird divisions early in an investigation. Later in the process, court judgments may include a sentencing or probation condition that an eagle take permit be sought; or where settlement negotiations have been successful, settlement agreement often includes a requirement that a company apply for an eagle take permit. Without such a determination, issuance of a permit may in some cases disrupt the ongoing investigation, prosecution, or negotiation process. Finally, the commenter disagrees that authorization of take for the religious purposes of Indian tribes should be prioritized over activities such as farming or utility development or maintenance. These amendments do not change the relative priority order of religious take and take for other activities. Moreover, we stand by the reasons for originally establishing the PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 91539 priority order set forth in the preamble to the 2009 regulation (74 FR 46836, September 11, 2009). Comment: Rather than require a permit, the Service should develop best management practices (BMPs) for industries to serve as a tool box from which companies can select and tailor components as necessary to operate under, monitor activities, and voluntarily report any passive ‘‘take.’’ Companies can choose either to rely on the guidelines or instead to develop their own internal construction standards that meet or exceed these guidelines. The use of BMPs, coupled with a commitment by the Service to exercise enforcement discretion for situations in which the BMPs did not avoid all impacts to eagles, could be an alternative to permitting. The Service should evaluate an alternative under which de minimis levels of passive ‘‘take,’’ including at oil and gas facilities, would be explicitly exempted from regulation under the incidental take permitting program. The Service should consider an activity-based programmatic approach similar to that under the Clean Water Act’s nationwide permit program. That program covers specific activities that may be used across a number of industry sectors. Similarly, the Service should consider an approach utilizing the permit-by-rule method, which may also improve the approval process for activities that present known hazards and with known and effective mitigation techniques. Response: The process described in the first comment is exactly how the permit process is designed to work, except under a permit: (1) Enforcement discretion is not necessary because the take is authorized; and (2) compensatory mitigation is required for take of golden eagles to offset the effects of the take. Because of the statutory language of the Eagle Act, the Service cannot exempt any take from regulation, and cannot exempt any bald eagle take from take liability without a permit (16 U.S.C. 668 and 668a). We will consider legal mechanisms for streamlining take authorizations to low-risk or lower impact activities in the future. Comment: The Service should not postpone redefining the definition of a ‘‘low risk’’ project of the eagle permit program in this rulemaking. The effort to establish a low-risk permit category should be a high-priority item for the Service as it is integral to establishing a streamlined permitting process. Response: We agree that this is a high priority item. In the meantime, the PEIS programmatically analyzes eagle take within certain levels and the effects of complying with compensatory E:\FR\FM\16DER4.SGM 16DER4 91540 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations mitigation requirements to allow the Service to tier from the PEIS when conducting project-level NEPA analyses. The PEIS will cover the analysis of effects to eagles under NEPA if: (1) The project will not take eagles at a rate that exceeds (individually or cumulatively) the take limit of the EMU (unless take is offset); (2) the project does not result in Service authorized take (individually or cumulatively) in excess of 5% of the LAP; and (3) the applicant will mitigate using an approach the Service has already analyzed (e.g., power pole retrofitting), or the applicant agrees to use a Service-approved third-party mitigation program such as a mitigation bank or in-lieu fee program to accomplish any required offset for the authorized mortality. The PEIS, therefore, should streamline the NEPA process for these projects. asabaliauskas on DSK3SPTVN1PROD with RULES Nest Take Permits Comment: The proposed rule leaves ‘‘home range’’ undefined, but it is used in the definition of ‘‘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.’’ Response: Home range means the area an animal uses to secure food and shelter, and through which the animal moves on a regular basis. Comment: The proposed definition of ‘‘eagle nest’’ is ambiguous and likely subject to misinterpretation. Using our residential development project as an example, the Service has constructed two manmade experimental platforms in the vicinity of our project with the intent of encouraging golden eagle nesting. The experiment has not been successful. No nests have been built since the platforms were installed more than 3 years ago. Based on the ambiguous language of this definition, however, the experimental platforms themselves could be considered nests if a golden eagle simply lands on, and thereby ‘‘uses’’ the platform—which is an assemblage of material—during the breeding season. Comment: There seems to be ambiguity surrounding the definition of an in-use nest. The proposed rule will allow for removal of an in-use nest prior to egg-laying, yet the definition fails to determine if alternate nests in which the adults regularly perch would also be considered an in-use nest. Response: The definition of ‘‘eagle nest’’ in this rule includes the phrase ‘‘for purposes of reproduction,’’ so it does not encompass nest structures that an eagle simply lands on. VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 Comment: With regard to the proposed definition of ‘‘alternate nest,’’ it is unreasonable to assume that a nest is an alternate nest in perpetuity, but this definition assumes that all nests not in use within a nesting territory are, in fact, alternate nests without reference to any time frame. Similarly, the definition makes no reference to the condition of the nest. Response: There is a great deal of variability as to how long a nest will be unused before eagles return to use it again. Eagles typically build nests where conditions are suitable for raising young relative to other locations. Sometimes those conditions remain relatively steady, sometimes they fluctuate between years, and sometimes they disappear. Even nests in good locations may not be used for many years. As for the condition of nests being the determining factor in whether they should remain protected, eagle nests are not infrequently damaged or partially destroyed by severe weather, but then restored to good condition by the eagles early in the breeding season. We think it is reasonable to err on the side of caution in protecting potentially valuable nests by not providing an arbitrary timeframe for when an eagle nest is no longer considered an eagle nest. At any rate, these regulations provide for a permit process that allows for removal of nests. Comment: Loss of a nesting territory is far more significant than the take of an individual, as the cumulative reproductive contribution of the pair or territory over time is lost. For this reason, loss of nesting territories should not be permitted unless it can be affirmatively determined that such loss will not have a detrimental effect on the LAP or on a critical subpopulation. Response: The Service agrees with this comment, and does take into account the effects of territory loss on the eagle management unit and LAP take limits, as described in the Status Report on page 26. Comment: Allowing removal of eagle nests just because it is outside of the breeding season is short sighted, and ignores the underlying role of adult pairs to annually defend their nests and near nest proximity, so that reproduction can continue in subsequent years, not just in the current nest cycle. Response: Prohibiting removal of nests outside the breeding season amounts to prohibiting eagle nest removal under any circumstances. It is not realistic to place a total ban on removing eagle nests. As bald eagle populations continue to grow, an increasing number of nests are built in PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 locations that pose safety hazards or severely restrict a landowner’s ability to use his or her property. The regulations for permitting eagle nest removal include many safeguards to ensure that nest removal is compatible with the preservation of eagles. Comment: Established protocols for monitoring throughout the course of nest take permits must be developed, and monitoring must be required by trained and approved independent experts. Monitoring time for nest and incidental take permits as required by permits should be similar to that required by most eagle-nest monitoring programs—a minimum of 2 hours per week by a trained independent monitor. Response: For nest take permits, as opposed to disturbance permits, monitoring would be required mostly to detect whether the resident pair of eagles nest successfully elsewhere. The level of monitoring will be contingent on the biological significance of the nest site to the eagle population or local (human) community, the ability to identify the pair of eagles that were potentially displaced, the feasibility of monitoring at different levels of intensity, and other case-specific factors. Comment: The Service should clarify that it is their intention that wind energy projects apply the buffer distances set forth in the National Bald Eagle Management Guidelines to wind farm infrastructure. Response: The National Bald Eagle Management Guidelines do not include recommended buffer distances between bald eagle nests and wind turbines because the primary concern with turbines is blade strike mortality and not disturbance. With respect to disturbance, many of the other recommendations in the Guidelines would apply to wind turbines during construction and maintenance. However, at this time, we do not have sufficient information to recommend buffer distances between eagle nests and wind turbines to avoid or reduce the likelihood of mortality. More observation is needed before the Service will issue official guidance for distance buffers between eagle nests and wind turbines. Comment: Without an objective assessment (i.e., not based on nest structures) of what the spatial extent of a specific pair’s territory is, there is no way to assess whether or not a nest is within a pair’s territory without circular reasoning, and therefore no way to determine if a territory, rather than a nest or set of nests, was abandoned. Only in cases where there is independent observation of the extent of E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations space use of a specific breeding pair, most likely through telemetry or colormark observations, will it be possible to assess territory boundaries independently of nests. The Service should provide an objective, operationally defined (i.e., defined in terms of observable characteristics) definition of the spatial extent of an eagle territory or abandon its reliance on availability of a nest ‘‘within the nesting territory’’ to assess territory abandonment. Response: What this commenter is suggesting is not possible. The Service directly addresses this admittedly difficult issue in the Status Report in the following way: ‘‘We recognize that for golden eagles in particular, nesting territories are often occupied by successive generations of individuals. Additionally, for both species, some nesting territories hold more value than others (Millsap et al. 2015, Watts 2015). Moreover, it is often difficult to predict in advance whether an activity will result in loss of a nesting territory, or simply the loss of a nest structure and cause a shift in use to an existing or new alternative nest—which may have little or no consequence to the eagle population (Watts 2015). For these reasons, each instance where loss of a nesting territory is a possible outcome requires additional review on the part of Service biologists. Permitting the loss of high-value nesting territories with a long history of occupancy and production could have greater population-level consequences.’’ Comment: The Service has described that in populations with high eagle density, the biological value of a single nest to eagle populations is lower, as productivity in highly saturated eagle populations decreases due to nests being built in less than ideal locations in relation to food sources and increased competition among nesting pairs. Eagle nest-monitoring data by the Florida Fish and Wildlife Conservation Commission do not support this conclusion. The Service should consider data available from state agencies and similar partners when determining biological value of individual nests in order to ensure permitting decisions are evidence-based and consistent with the proposed preservation standard. Response: There is increasing evidence in raptor populations that high-quality nesting sites are occupied first, and more consistently, than lower quality nesting sites. This factor contributes to what is known as the habitat heterogeneity effect, a biological process whereby overall per capita productivity of a raptor population declines with increasing density of nests VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 because newer territories are in lesser habitats and have lower productivity. This is the basis for the Service’s statement, and it is described in more detail in the Status Report on page 6. However, the Service also acknowledges the importance of taking individual circumstances into account, including shifts in prey availability over time that may lead to temporal variation in territory quality. Comment: The Service refers to ‘‘alternate nests just being built’’ as having low biological value. However, in some territories, a newly built nest may have greater biological value than the most recently ‘‘in use’’ nest depending on territory-specific factors. We recommend that the Service allow for territory-specific factors to be considered in determining biological value of nests when permitting nest removal. Response: We fully agree with this comment. Assessing the biological value of nests will include consideration of site-specific factors, including information pertaining to the availability and past use of other nests in the territory. Comment: The Service should consider the potential for inconsistency in determining and applying ‘‘net benefit’’ calculations, similar to the issues raised in the Service’s approach for determining compensatory mitigation for permits under the 2009 regulations. The Service should also consider whether the standard for ‘‘net benefit’’ incentivizes removal of nests over avoidance and minimization measures, which could accelerate loss of nest territories. If acceptable ‘‘net benefit’’ standards for nest removal are relatively low, as compared to the cumulative cost for projects to avoid and minimize, it can be expected that more projects will pursue nest removal permits rather than incidental take permits. Response: We acknowledge that the net benefit requirement is somewhat vague and could potentially be applied inconsistently. However, we have regular coordination calls between staff who issue eagle permits from the different Service Regional Offices, and the application of this standard to particular permits has been discussed so far for every case where it has been applied. We hope to be able to continue that level of coordination to further consistency in how this provision is applied. We typically will require a disturbance permit rather than a nest removal permit if it is possible for the potential applicant to avoid actual removal of the nest. The regulations prevent the Service from issuing a PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 91541 permit unless we determine there is no practicable alternative to nest removal that would protect the interest to be served. Comment: We recommend the Service consider options to ensure the persistence of local populations in areas where eagle nests on artificial structures represent a larger percentage of the LAP. Response: Nests that eagles build on artificial structures fall within the definition of ‘‘eagle nests’’ protected under the Eagle Act, the removal of which would require a permit. The LAP cumulative effects analysis, and revised definition of the Eagle Act preservation standard that includes the persistence of local populations, both apply to nest removal permits and are designed to protect local populations even if a large percentage of eagles breed on nests built on artificial structures. Comment: The proposed regulations would retain the requirement that the Service consider the availability of alternative suitable nesting habitat, but a finding that there is would not be a prerequisite for issuing a permit. We request that the Service reconsider this proposal to remove this requirement and instead require that suitable nesting habitat be present, but not necessarily available, in the area. Removal of this requirement would reduce or eliminate opportunities to apply mitigation measures within the immediate vicinity of the affected area. Response: The types of conditions that eagles nest in are widely variable. In some circumstances, making nest removal contingent on there being suitable nesting habitat available is not warranted or reasonable. For example, more and more often, bald eagles are nesting in risky infrastructure that does not provide the conditions needed for successfully nesting and fledging of young. Such nests can also present safety hazards and/or unduly restrict people’s ability to conduct daily routine activities. The regulations need to provide an option to issue permits for removal of nests that have marginal biological value and also pose problems or hazards to people or eagles, regardless of there being suitable nesting habitat in the vicinity. Comment: The Service proposes to use 10 consecutive days of continuous absence as a national metric for declaring a nest inactive. This metric should be researched further and should take into consideration activity patterns of the species within the LAP where nest take would occur. There is ample research showing that juvenile bald eagles use their nests up to 45 days after fledging before they migrate, and often E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91542 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations do not return to the nest for periods of more than 10 days. Response: The metric of 10 consecutive days has been in the regulations for several decades and has proven to be a reasonable timeframe for purposes of both permitting and protection of eagles. If young eagles have left and not returned to a nest over 10 consecutive days, it is reasonable to conclude the nest structure is no longer critical to them and can be removed, assuming other criteria warranting nest removal have been met. We fully recognize that nests might be revisited and used for longer periods of time, but loss of a nest after 10 days of non-use is unlikely to pose a threat to survival of the juveniles. Comment: The proposed new nest take rules do not give consideration to the loss of habitat that accompanies a nest take in areas with rampant growth and development. Comment: The regulations should increase protection to the areas surrounding active nests. The proposed rule does not directly address buffers of protection surrounding nests throughout the year. Habitat modification can undermine the viability of that food source, threatening the continued success of the nest. This potential loss of productivity is not accounted for in the permitting framework, yet could have significant impacts on local populations. Response: The Eagle Act does not provide direct protection to eagle habitat, except for nests themselves. However, our regulations and guidance include a variety of strategies that take habitat into consideration, because habitat is, of course, necessary to preserve eagles. With regard to nest take permits, they can be issued only for specific limited purposes, unless a net benefit to eagles will be provided. The biological value of a nest is closely tied to the value of the surrounding habitat. Thus removal of a high-value nest would require a significant net benefit to eagles. The Service’s recommendations for preventing disturbance to nesting bald eagles are in our National Bald Eagle Management Guidelines, including recommended buffer distances for construction and other activities near bald eagle nests. We are in the process of developing comparable guidance for golden eagles. Comment: The Service should include in the final document a clear decisionmaking process that includes discreet criteria as to what constitutes an anticipated emergency situation. Permits should be limited to cases where human health or safety is highly likely to be endangered if no action is VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 taken, and there is high confidence that the nest does not contain eggs or young. Comment: What is the definition of a safety emergency (as used in the context of the proposed rule revision)? How does the Service make this determination? Does the Service intend to gain insight/formal input from other federal agencies (e.g., Federal Aviation Administration, U.S. Department of Agriculture—Animal and Plant Health Inspection Service—Wildlife Services, Federal Highway Administration) that have expertise and/or regulatory authority in specific situations? Response: We disagree with the suggestion that, unless there is high confidence that no eggs or young are in a nest, the Service cannot issue a permit for the purpose of protecting human or eagle lives. We believe a safety risk to people or eagles should take precedence above leaving eggs or nestlings undisturbed in the nest. In response to the question about what constitutes a safety emergency, the term is defined in the regulations at 50 CFR 22.3 as ‘‘a situation that necessitates immediate action to alleviate a threat of bodily harm to humans or eagles.’’ How we will make the determination is a fair question, but it may not be advisable or helpful to codify specifications for what factors must be present because of the risk of excluding circumstances that we failed to consider but which present a serious risk of bodily harm. However, we may develop some relatively broad guidance to assist in making these determinations in the future. Comment: Under the proposed changes to nest take permits, there is a provision for the Service to waive the requirement that nestlings be transported to a foster nest or permitted rehabilitator in the case of an emergency nest removal. Even in cases where a nest is not near a possible foster nest or rehabilitator, the Service should put forth all efforts to ensure that nestlings are released back into the wild. Response: The revision makes it possible for the Service to legally authorize the nest removal in a case of emergency (imminent risk to human or eagle safety) even when it is not feasible to place the eggs or young with a rehabilitator. Where it is reasonably possible to do so, the permit will require the eggs or young to be placed with a permitted rehabilitator or other similarly authorized facility. Comment: We support the Service’s position that a minimal level of compensatory mitigation is appropriate when authorizing take of golden eagle nests; however, the Service should clarify that no compensatory mitigation PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 is required when these instances involve bald eagle nests. Response: Actually, we did not and do not take the position that only a minimal level of compensation is required for take of a golden eagle nest. Our position then and now is that golden eagle nest take permits will be more restrictive in nature, but without including different criteria for the two species in the regulations. Our view is that regulations should not be speciesspecific; rather, they should address specific conditions that could apply to any of the species they are designed to protect. All golden eagle take permits, except for those authorizing ongoing take occurring prior to 2009, will require offsetting mitigation. The avoidance and minimization requirements in the existing and these regulations are designed to ensure that removal of a nest of either species is the last option. 81 FR 27934, 27961 (May 6, 2016). Regarding bald eagle nests, mitigation will be required if the activity that necessitates the take does not in itself provide a ‘‘net benefit.’’ As explained earlier in the preamble of this rule, the mitigation is likely to be minimal for new bald eagle nests established in areas densely populated by eagles, which are more and more typically the nests for which applicants seek nest take permits. Comment: Eagle nests may be subject to protections of the National Historic Preservation Act (NHPA) due to the status of eagle nests as traditional cultural properties (36 CFR 800.16(I)(1): Historic property includes properties of traditional religious and cultural importance to an Indian tribe). Therefore, for nesting sites subject to the NHPA, the Service must comply with the NHPA’s section 106 consultation process prior to authorizing an undertaking that could affect eagle nesting sites (36 CFR 800.2(c)(2)(ii) requires consultation with tribes where properties of religious or cultural significance may be affected by a federal undertaking). Consultation with tribal governments regarding nest removal permits is also necessary to determine whether a vacant nest site has or has not been permanently abandoned. Response: The Service is responsible for compliance with the NHPA and to review all projects that may have the potential to affect historic properties. Traditional cultural properties, and religious and sacred areas, are all elements that might be included within the borders of projects under our review. As we follow the NHPA consultation process, information about such sites will develop that will help inform our decisions. With regard to the E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations status of the nest, that is, whether it has been used for breeding purposes in recent years or is currently in use, we will rely on any available and reliable source of such information, including through consultation with tribes that have such information. Comment: The eagle nest take permit regulations should take into account existing practices adopted to address take or removal of eagle and other raptor nests. For example, the Bridger Coal Mine in Wyoming is operated under a permit from the Wyoming Department of Environmental Quality. The mine permit incorporates a raptor mitigation plan that is reviewed by the Service. Under the raptor mitigation plan, if the mine operators locate an inactive (or ‘‘alternate,’’ as now defined in the proposed rule) nest in an active mining area, in most cases it may remove the nest as long as a substitute nest is constructed without applying for a separate take permit. Response: Wyoming’s Coal Mine Migratory Bird Plans do not allow removal of eagle nests without a permit, and the mining permit issued by the Wyoming Department of Environmental Quality provides no exemption from Service authorities or permitting processes. The plan addresses when there is a need for a nest permit application and proposed mitigation (which may or may not be the final mitigation approved in the permit as determined by the Service’s Migratory Bird Office). 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 rule is significant because it may raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in E.O. 12866. 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 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, 201, 110 Stat. 847)), 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. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for ‘‘significant impact’’ and a threshold for a 91543 ‘‘substantial number of small entities.’’ See 5 U.S.C. 605(b). We have examined this rule’s potential effects on small entities as required by the Regulatory Flexibility Act and determined that this action will not have a significant economic impact on a substantial number of small entities. This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. To assess the effects of the rule on small entities, we focus on home construction companies, wind energy facilities, and electric transmission companies. Although small, noncommercial wind energy facilities could seek permits, we anticipate that most of the applications for wind energy 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. The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard, which is less than 250 employees for ‘‘Wind Electric Power Generation (NAICS 221115), less than 1,000 employees for ‘‘Electric Power Distribution’’ (NAICS 221122), less than 500 employees for ‘‘Logging’’ (NAICS 113310), less than $36.5 million for ‘‘Construction of Buildings’’ (NAICS 236115, 236116, 236117, 236210, and 236220), less than $36.5 million for ‘‘Highway, Street, and Bridge Construction’’ (NAICS 237310), less than $15.0 million for ‘‘Support Activities for Rail Transportation’’ (NAICS 488210), and less than 1,500 employees for ‘‘Gold Ore Mining’’ (NAICS 212221). Table 1 describes the number of businesses within each industry and the estimated percentage of small businesses impacted by this rule. TABLE 1—DISTRIBUTION OF POTENTIAL IMPACTED BUSINESSES Total businesses asabaliauskas on DSK3SPTVN1PROD with RULES NAICS code Description Number of all businesses 221115 221122 113310 236115 .............. .............. .............. .............. 236116 .............. VerDate Sep<11>2014 Wind Electric Power Generation ...................................... Electric Power Distribution ............................................... Logging ............................................................................. New Single-family Housing Construction (Except ForSale Builders). New Multifamily Housing Construction (except For-Sale Builders). 20:36 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 Small businesses potentially impacted by rule Number of small businesses Number Percentage 410 7,547 7,908 30,380 402 7,513 7,907 29,469 10 <26 1 to 2 <26 2 <1 <1 <1 1,788 1,734 <26 <2 E:\FR\FM\16DER4.SGM 16DER4 91544 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations TABLE 1—DISTRIBUTION OF POTENTIAL IMPACTED BUSINESSES—Continued Total businesses NAICS code Description Number of all businesses 236117 236118 236210 236220 237310 237990 488210 212221 .............. .............. .............. .............. .............. .............. .............. .............. New Housing For-Sale Builders ....................................... Residential Remodelers ................................................... Industrial Building Construction ....................................... Commercial and Institutional Building Construction ........ Highway, Street, and Bridge Construction ....................... Other Heavy and Civil Engineering Construction ............ Support Activities for Rail Transportation ........................ Gold Ore Mining ............................................................... 16,093 77,855 2,622 35,758 8,854 3,423 1275 214 Small businesses potentially impacted by rule Number of small businesses 15,610 75,519 2,543 34,685 8,588 3,320 613 214 Number <26 <26 <26 <26 <26 <26 1 to 2 1 to 2 Percentage <1 <1 <1 <1 <1 <1 <1 <1 Source: U.S. Census Bureau, 2012 County Business Patterns. asabaliauskas on DSK3SPTVN1PROD with RULES In the first 5 years (2011 through 2015) since the eagle permit regulations at 50 CFR 22.26 and 50 CFR 22.27 were published, the Service has issued 347 standard permits which averages about 70 permits annually. For the 347 standard permits, 131 permits were issued to businesses, 172 permits to Government agencies, and 44 permits to individuals. The average annual distribution was 26 permits to businesses, 34 permits to government, and 9 permits to individuals. Businesses that apply for permits typically include home construction, road construction, and various other construction projects. Thus, the maximum impact to any single construction industry would be less than 26 businesses annually. It is VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 more likely that the permits would be distributed across various construction industries. As a result, less than 1to 2 percent of small businesses in these sectors will be impacted by this rule. Homeowners have no fee increases except for applications for multiple eagle nest take ($500). Given the number of standard permits issued (44), this rule will not have a significant economic effect on a substantial number of homeowners. Commercial businesses will face higher permit fees under this rule. A commercial business applying for what was a standard permit would have to pay $2,500 (an increase of $2,000). Businesses in the construction industry are defined as small if they have annual revenue less than $36.5 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 million, yet many construction businesses (38 percent) have revenue less than $250,000. To conservatively estimate the potential impact to commercial businesses applying for standard permits, we utilize $250,000 to depict small businesses’ sales. Depending on the type of permit applications submitted by an individual small business, the permit fees will represent 1 to 3 percent of revenue for this size of business. Thus, the changes in standard permit fees will not have a significant economic effect on a substantial number of small businesses in the construction sectors. The changes in permit application processing and amendment fees are shown in Table 2. E:\FR\FM\16DER4.SGM 16DER4 From 2011 to 2015, we received a total of 37 programmatic permit applications and have issued one programmatic permit thus far. All of the applications except three are for wind energy projects. Two applications were from electric utilities, while one application was from a gold mining operation. We anticipate a greater volume of applications for permits for long-term activities in the future, although we expect the number to increase gradually over time. At the current average rate (7 applications annually), approximately 2 percent of small wind energy businesses apply for permits annually (Table 1). Furthermore, less than 1 percent of small businesses within the electric utility and mining sectors apply for permits (Table 1). Assuming perhaps a ten-fold increase in such permit applications over the foreseeable future, this rule will not impact a substantial number of small entities. Initial permit application processing fees for long-term permits will not change from the current $36,000. If a permittee requests the programmatic permit to exceed 5 years, then there will be an $8,000 review fee every 5 years to recoup the Service’s review costs. With a 5-year maximum permit duration, VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 renewal of a permit would require a $36,000 permit application processing fee, so the $8,000 administration fee reduces costs to small businesses engaged in long-term acitivities. We therefore certify that the rule will not have a significant economic impact on a substantial number of small entities, and no regulatory flexibility analysis is required. 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 rule will not ‘‘significantly or uniquely’’ affect small governments. A small government agency plan is not required. The regulations changes will not affect small government activities in any significant way. b. This rule will 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 will not have significant takings implications. This rule does not contain any provisions that could constitute taking of private property. Therefore, a PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 91545 takings implication assessment is not required. Federalism This rule will not have sufficient Federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132. It will not interfere with the States’ abilities to manage themselves or their funds. No significant economic impacts are expected to result from the regulations change. Civil Justice Reform In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule will 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 final 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 E:\FR\FM\16DER4.SGM 16DER4 ER16DE16.035</GPH> asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 91546 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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 final 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 final rule: (1) Establishes an administration fee of $8,000 that each permittee will pay every 5 years to cover the cost of the 5year 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) Changes the application fees associated with some permits. (3) Requires annual reports. This requirement is approved under OMB Control Number 1018–0022. There are no fees associated with annual reports. (4) Establishes a new reporting requirement and a new administration fee for permits of over 5 years. (5) Requires pre- and postconstruction monitoring of eagle use of the project area, which may include preparation of an Eagle Conservation Plan, and requires immediate reporting of take of eagles and Threatened and Endangered species. OMB has not yet approved the information collection requirements associated with this rule. We will announce the approval in a separate notice in the Federal Register. When we seek renewal of OMB Control Number 1018–0022, we will incorporate the new hour and nonhour burden into that renewal and discontinue this OMB control number. An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. Title: Eagle Take Permits and Fees, 50 CFR 22. OMB Control Number: 1018–0167 (number assigned by OMB). Service Form Number(s): 3–200–71, 3–200–72. 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. The Service inadvertently omitted Table 1 and its burden from the proposed rule. The following Table cites the total burden for this information collection. TABLE 1—ESTIMATED HOUR AND COST BURDEN FOR LONG TERM EAGLE TAKE PERMITS Average completion time per response (hours) Annual number of responses Activity/requirement Total annual burden hours Cost/hour $ Value of annual burden hours (rounded) Pre-construction Monitoring Surveys ................................... Preparation of Eagle Conservation Plan ............................. Post Construction Monitoring ............................................... Reporting Take of Eagles .................................................... Reporting Take of Threatened & Endangered Species ...... § 22.26(c)(7)(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 compiles and submits to the Service, eagle fatality data or other pertinent information that is site-specific for the project.9 Footnote 9 may be found in Table 2 Note that the dollar value of the annual burden cost is included in the $8,000 permit 5-year permit review fee ........................... 15 15 15 10 1 650 200 700 2 2 9750 3000 10,500 20 2 $34.26 34.26 34.26 34.26 34.26 $334,035 102,780 359,730 685 69 4 8 32 34.26 1,096 Total .............................................................................. 60 1562 23,304 ........................ 798,395 TABLE 2—CHANGES IN NONHOUR BURDEN FEES FOR EAGLE TAKE PERMITS Total proposed nonhour burden cost $500 Non-commercial. $12,500 Noncommercial. $12,500 Noncommercial. $0 Non-commercial. $500 Commercial. $500 Non-commercial. $2,500 Commercial. $500 Non-commercial. $60,000 Commercial. $5,000 Noncommercial. $300,000 Commercial. $5,000 Noncommercial. +$240,000 Commercial. $0 Non-commercial. $500 Commercial. $2,500 Commercial. $10,000 Commercial. $50,000 Commercial. +$40,000 Commercial. Current fee Proposed fee 3–200–71—application, Eagle Incidental Take—(not programmatic or long-term) 1. asabaliauskas on DSK3SPTVN1PROD with RULES Existing approval (1018–0022) No. of responses and annual burden hours approved under OMB Control No. 1018–0022. $500 Non-commercial. This rule revises fees and nonhour costs. No. of responses and annual burden hours approved under OMB Control No. 1018–0022. This rule revises nonhour costs. 3–200–72—application, Eagle Nest Take— single nest (formerly ‘‘standard’’) 2. VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 fees and PO 00000 Difference between 1018– 0022 and proposed Total approved nonhour burden cost Activity/requirement Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 91547 TABLE 2—CHANGES IN NONHOUR BURDEN FEES FOR EAGLE TAKE PERMITS—Continued Total proposed nonhour burden cost $500—Noncommercial. $0 3 .................. $500 Non-commercial. +$500 Noncommercial. .......................... $150 Non-commercial. $5,000—Commercial. $150—Noncommercial. $300 Non-commercial. $40,000 Commercial. $300 Non-commercial. +$40,000 Commercial. $0 Non-commercial. This rule revises fees and nonhour costs. No. of responses and annual burden hours approved under OMB Control No. 1018–0022. $150 Commercial. $150 Non-commercial. $500—Commercial. $150—Noncommercial. $2,700 5 Commercial. $150 Non-commercial. $9,000 Commercial. $150 Non-commercial. +$6,300 Commercial. $0 Non-commercial. This rule revises fees and nonhour costs. No. of responses and annual burden hours approved under OMB Control No. 1018–0022. $150 Commercial. $1,000 Commercial. $500—Commercial. No Fee 7 .......... $600 6 Commercial. $1,000 Commercial. $2,000 Commercial. .......................... +$1,400 Commercial. ¥ $1,000 Commercial. Existing approval (1018–0022) Current fee 3–200–72—application, Eagle Nest Take— multiple nests (formerly ‘‘programmatic’’) 3. No. of responses and annual burden hours approved under OMB Control No. 1018–0022. $1,000 .............. This rule revises fees and nonhour costs. No. of responses and annual burden hours approved under OMB Control No. 1018–0022. .......................... 3–200–71 Eagle Incidental Take Amendment— less than 5 years (formerly ‘‘standard’’ 4. 3–200–72 Eagle Nest Take Amendment— ‘‘Single nest’’ (formerly ‘‘standard’’) 4. 3–200–71 Amendment— Eagle Incidental Take Programmatic. Difference between 1018– 0022 and proposed Total approved nonhour burden cost Activity/requirement Proposed fee NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE § 22.26(c)(7)(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 compiles and submits to the Service, eagle fatality data or other pertinent information that is sitespecific for the project.9 No. of responses and annual burden hours shown in Item 12, Table 1. 0 ....................... $8,000 .............. 0 ....................... $32,000 ............ +$32,000 Total ........... .................................................... .......................... .......................... $92,250 ............ $431,450 .......... $359,200. asabaliauskas on DSK3SPTVN1PROD with RULES 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 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 (standard and programmatic permits were combined)—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 (standard and programmatic permits were combined)—9 responses (1 from Individuals/homeowners (non-commercial) and 8 from private sector (commercial) totaling 360 burden hours (40 hrs (individuals) and 320 hrs (private sector). The approved nonhour 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 rule, the homeowner fee would increase to $500; private sector fee (commercial) would increase to $5,000. Total for 1 homeowner—$500; total for 8 commercial—$40,000. VerDate Sep<11>2014 22:14 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER4.SGM 16DER4 91548 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 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 rule, it is being removed because the costs associated with it would be included under the Administration Fee. 8 ROCIS would not allow entering negative $1,000 to account for the elimination of fees. Therefore, in ROCIS, the elimination is reflected for the eagle nest take amendment total nonhour cost burden. 9 This is a new reporting requirement as well as a new Administration Fee and applies only to Commercial permittees. 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 an $8,000 administration fee for each permittee for a total of $32,000. 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. asabaliauskas on DSK3SPTVN1PROD with RULES Estimated Total Hour Burden: 23,304 hours, the total number of new respondents is 60. Estimated Total Hour Burden Cost: $798,395 for gathering information required to support an application, which may include preparation of an Eagle Conservation Plan (ECP). This includes 650 hours for pre-construction monitoring surveys of eagle use of the project site and 700 hours of postconstruction monitoring for each respondent. Preparation of the application, which may include preparation of an ECP, will take approximately 200 hours per respondent. These burden hours only apply to those seeking a long-term eagle take permit. In addition, those that receive a permit are required to report take of eagles and Threatened or Endangered species within 48 hours of discovery of the take. It is estimated that of the 15 projects permitted to take eagles each year, 10 will actually take eagles, requiring 2 hours per respondent to report. Take of threatened or endangered species is expected to be a rare event, and occur at only one of the 15 projects permitted each year, requiring only 2 hours to report. The burden hours also include the costs for the 5-year permit review. We estimate 8 hours per respondent to complete the requirements of the permit review for a total of 32 hours. Estimated New Total Nonhour Burden Cost: $359,200 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. Endangered and Threatened Species Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531–1544), requires Federal agencies to consult to ‘‘insure that any action authorized, funded, or carried out’’ by them ‘‘is not likely to jeopardize the continued existence of any endangered species or threatened VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 species or result in the destruction or adverse modification of [critical] habitat’’ (16 U.S.C. 1536(a)(2)). IntraService consultations and conferences consider the effects of the Service’s actions on listed, proposed, and candidate species. Our final action of issuing our regulations regarding take of non-ESA-listed eagles does not authorize, fund, or carry out any activity that may affect—directly or indirectly— any ESA-listed species or their critical habitat. See, e.g., Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to authorize, fund, or carry out project activities by third parties. The Eagle Act empowers us to authorize take of bald and golden eagles. Thus, we have determined these revisions have no effect on any listed, proposed, or candidate species or their critical habitat. As a result, section 7 consultation is not required on this proposed action. As appropriate, we will conduct project-specific, intraService section 7 consultations in the future if our proposed act of issuing a permit for take of eagles may affect ESAlisted species or critical habitat. 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 rule will not interfere with tribes’ abilities to manage themselves, their funds, or tribal lands. In September of 2013, well before the Service published its notice of intent to develop a draft PEIS for the rule and held public scoping meetings, 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 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 amendment. After sending these letters and receiving responses from several Tribes, we conducted webinars, group meetings, and meetings with individual Tribes. We 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 will be sufficiently protected under this rule 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 will 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. 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. Huso. M.M.P. 2009. An estimator of wildlife fatality from observed carcasses. Environmetrics 22:318–329. Kochert, M.N., Steenhof, K., 2012. Frequency of nest use by golden eagles in southwestern Idaho. J. Raptor Res. 46, 239–247. http://dx.doi.org/10.3356/JRR12-00001.1. E:\FR\FM\16DER4.SGM 16DER4 91549 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations Korner-Nievergelt F., Korner-Nievergelt P., Bher O., Niermann I., Brinkmann R., Hellriegel B. 2011. A new method to determine bird and bat fatality at wind energy turbines from carcass searches. Wildlife Biology 17:350–363. 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. Millsap, B.A., T.G. Grubb, R.K. Murphy, T. Swem, and J.W. Watson. 2015. Conservation significance of alternative nests of golden eagles. Global Ecology and Conservation 3:234–241. 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. New, L., Bjerre, E., Millsap, B., Otto, M., Runge, M. 2015. A collision risk model to predict avian fatalities at wind facilities: An example using golden eagles, Aquila chrysaetos. http:// journals.plos.org/plosone/ article?id=10.1371/ journal.pone.0130978. Nygaard, T., K. Bevanger, E. Lie Dahl, ;. Flagstad, A. Follestad, P.L. Hoel, R. May, and O. Reitan. 2010. A study of the White-tailed eagle Haliaeetus albicilla movements and mortality at a wind farm in Norway. BOU Proceedings-Climate Change and Birds. British Ornithologists’ Union. http://www.bou.org.uk/bouprocnet/ccb/nygard-etal.pdf. U.S. Fish and Wildlife Service. 2007. National Bald Eagle Management Guidelines. Division of Migratory Bird Management. http://www.fws.gov/birds/ management/managed-species/eaglemanagement.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. http://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. 2013b. Issuance of a Bald and Golden Eagle Act permit to take golden eagles to the Hopi Tribe for Native American religious purposes. Amended Environmental Assessment. Division of Migratory Bird Management, Southwest Region. https:// www.fws.gov/southwest/migratorybirds/ docs/Revised%20Final_EA%204_24_ 2013%20complete.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. Watts, B.D. 2015. Estimating the residual value of alternate bald eagle nests: Implications for nest protection standards. The Journal of Wildlife Management 79:776–784. Williams, B.K., J.D. Nichols, and M.J. Conroy. 2002. Analysis and management of animal populations: Modeling, estimation, and decision making. Academic Press, San Diego, California USA. Type of permit * List of Subjects 50 CFR Part 13 Administrative practice and procedure, Exports, Fish, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife. 50 CFR Part 22 Exports, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife. Regulation Promulgation For the reasons described in the preamble, we hereby amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 13—GENERAL PERMIT PROCEDURES 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. 2. Amend the table in § 13.11(d)(4) by: a. Removing the column with the heading ‘‘Administration fee 1’’; and ■ b. Revising the section ‘‘Bald and Golden Eagle Protection Act’’ and footnote 1. The revision reads as follows: ■ ■ § 13.11 * Application procedures. * * (d) * * * (4) * * * * * * Permit application fee CFR citation * * * * Amendment fee * Bald and Golden Eagle Protection Act asabaliauskas on DSK3SPTVN1PROD with RULES Eagle Scientific Collecting ............................................................................. Eagle Exhibition ............................................................................................ Eagle Falconry .............................................................................................. Eagle—Native American Religion ................................................................. Eagle Take permits—Depredation and Protection of Health and Safety ..... Golden Eagle Nest Take ............................................................................... Eagle Transport—Scientific or Exhibition ..................................................... Eagle Transport—Native American Religious Purposes .............................. Eagle Incidental Take—Up to 5 years, Commercial .................................... Eagle Incidental Take—Non-commercial ...................................................... Eagle Incidental Take—5–30 years 1 ............................................................ Eagle Incidental Take—Transfer of a permit ................................................ Eagle Nest Take—Single nest, Commercial ................................................ Eagle Nest Take—Single nest, Non-commercial ......................................... Eagle Nest Take—Multiple nests .................................................................. Eagle Take—Exempted under ESA ............................................................. * * * * 1 An 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR CFR part part part part part part part part part part part part part part part part 22 22 22 22 22 22 22 22 22 22 22 22 22 22 22 22 ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... ........................... * 100 .................. 75 .................... 100 .................. No fee ............. 100 .................. 100 .................. 75 .................... No fee ............. 2,500 ............... 500 .................. 36,000 1 .......... 1,000 ............... 2,500 ............... 500 .................. 5,000 ............... No fee ............. * 50 ........................ ........................ ........................ ........................ 50 ........................ ........................ 500 150 ........................ ........................ 500 150 500 ........................ * additional Administration Fee of $8,000 will be assessed every 5 years for permits with durations longer than 5 years for permit review. * * * PART 22—EAGLE PERMITS * Authority: 16 U.S.C. 668–668d; 703–712; 1531–1544. 3. The authority citation for part 22 is revised to read as follows: * ■ ■ VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 4. Amend § 22.3 by: E:\FR\FM\16DER4.SGM 16DER4 91550 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations a. Removing the definition of ‘‘Advanced conservation practices’’; ■ b. Adding a definition for ‘‘Alternate nest’’; ■ c. Removing the definition of ‘‘Area nesting population’’; ■ d. Adding definitions for ‘‘Compatible with the preservation of the bald eagle or the golden eagle’’ and ‘‘Eagle management unit (EMU)’’; ■ e. Revising the definition of ‘‘Eagle nest’’; ■ f. Removing the definition of ‘‘Inactive nest’’; ■ g. Adding definitions for ‘‘In-use nest’’ and ‘‘Local area population (LAP)’’; ■ h. Removing the definition of ‘‘Maximum degree achievable’’; ■ i. Adding a definition for ‘‘Nesting territory’’; ■ j. Revising the definition of ‘‘Practicable’’; and ■ k. Removing the definitions of ‘‘Programmatic permit’’, ‘‘Programmatic take’’, and ‘‘Territory’’. The additions and revisions read as follows: ■ § 22.3 What definitions do you need to know? asabaliauskas on DSK3SPTVN1PROD with RULES * * * * * Alternate nest means 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. * * * * * 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 the persistence of local populations throughout the geographic range of each species. * * * * * Eagle management unit (EMU) means a geographically bounded region within which permitted take is regulated to meet the management goal of maintaining stable or increasing breeding populations of bald or golden eagles. 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 VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 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 eagles and the activity’s overall purpose, scope, and scale. * * * * * § 22.4 [Amended] 5. In § 22.4, amend paragraph (a) by removing ‘‘and 1018–0136’’ in the first sentence. ■ 6. Amend § 22.11 by revising paragraph (c) to read as follows: ■ § 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. * * * * * ■ 7. Amend § 22.25 by: ■ a. Revising the first sentence of the introductory text; ■ b. Removing the semicolons at the ends of paragraphs (a)(1) and (2) and adding periods in their place; ■ c. Revising paragraph (a)(4); ■ d. Removing the semicolon at the end of paragraph (a)(5) and adding a period in its place; ■ e. Removing paragraph (a)(6), and redesignating paragraphs (a)(7) through (9) as paragraphs (a)(6) through (8); ■ 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; ■ g. Revising paragraphs (b)(1) and (4); ■ h. Revising the first sentence in paragraph (c) introductory text; ■ i. Removing paragraphs (c)(3) and (6), and redesignating paragraphs (c)(4) and (5) as paragraphs (c)(3) and (4); and PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 j. Revising newly redesignated paragraphs (c)(3) and (4). The revisions read as follows: ■ § 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 inuse 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) Issuance criteria. The Director shall conduct an investigation and not issue a permit to take any golden eagle nest unless such taking is compatible with the preservation of golden eagles. * * * * * * * * (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 reoccupation by golden eagles of the resource development or recovery site. Mitigation measures may include, but are not limited to, reclaiming disturbed land to E:\FR\FM\16DER4.SGM 16DER4 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations enhance golden eagle nesting and foraging habitat, relocating in suitable habitat any golden eagle nest taken, or establishing one or more nest sites. * * * * * ■ 8. Amend § 22.26 by: ■ a. Revising paragraphs (a) and (c)(1) through (3); ■ b. Redesignating paragraphs (c)(7) through (10) as (c)(8) through (11), adding new paragraph (c)(7), and revising newly redesignated paragraphs (c)(8), (9), and (11); ■ c. Revising paragraph (d)(2); ■ d. Adding paragraph (d)(3); ■ e. Revising paragraph (e)(1); ■ f. Redesignating paragraphs (e)(3), (4), and (5) as paragraphs (e)(5), (7), and (9), and adding new paragraphs (e)(3), (4), (6), and (8); ■ g. Revising newly redesignated paragraphs (e)(5) and (e)(7)(i) through (iv); ■ h. Removing newly redesignated paragraph (e)(7)(v); and ■ i. Revising paragraphs (f), (h) and (i). The revisions and additions read as follows: asabaliauskas on DSK3SPTVN1PROD with RULES § 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 and cumulative effects, of the permitted take. (i) Compensatory mitigation scaled to project impacts will be required for any permit authorizing take that would exceed the applicable eagle management unit 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 the eagle population 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 VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 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 eagle management unit during part of their seasonal migration; (C) Use the best available science in formulating and monitoring the longterm effectiveness of mitigation measures and use rigorous compliance and effectiveness monitoring and evaluation to make certain that mitigation measures achieve their intended outcomes, or that necessary changes are implemented to achieve them; (D) Be additional and improve upon the baseline conditions of the affected eagle species in a manner that is demonstrably new and would not have occurred without the compensatory mitigation (voluntary actions taken in anticipation of meeting compensatory mitigation requirements for an eagle take permit not yet granted may be credited toward compensatory mitigation requirements); (E) Be durable and, at a minimum, maintain its intended purpose for as long as impacts of the authorized take persist; and (F) Include mechanisms to account for and address uncertainty and risk of failure of a compensatory mitigation measure. (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 impacts to eagles from the permitted activity 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 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 91551 ongoing activities and enduring site features that will likely continue to cause take, periodic monitoring will 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. Your permit may require that the monitoring be conducted by qualified, independent third parties that report directly to the Service. (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) Monitoring. Monitoring to assess project impacts to eagles and the effectiveness of avoidance and minimization measures must be conducted by qualified, independent third parties, approved by the Service. Monitors must report directly to the Service and provide a copy of the reports and materials to the permittee. (ii) Adaptive management. The permit will specify circumstances under which modifications to avoidance, minimization, or compensatory mitigation measures or monitoring protocols will be required, which may include, but are not limited to: Take levels, location of take, and changes in eagle use of the activity area. At a minimum, the permit must specify actions to be taken if take approaches or reaches the amount authorized and anticipated within a given time frame. Adaptive management terms in a permit will include review periods of no more than 5 years and may require prompt action(s) upon reaching specified E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES 91552 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations conditions at any time during the review period. (iii) Permit reviews. At no more than 5 years from the date a permit that exceeds 5 years is issued, and at least 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 this information, as well as information provided directly to the Service by independent monitors, to determine whether: (A) The permittee is in compliance with the terms and conditions of the permit and has implemented all applicable adaptive management measures specified in the permit; and (B) Eagle take does not exceed the amount authorized to occur within the period of review. (iv) Actions to be taken based on the permit review. (A) In consultation with the permittee, the Service will update fatality predictions, authorized take levels and compensatory mitigation for future years, taking into account the observed levels of take based on approved protocols for monitoring and estimating total take, and, if applicable, accounting for changes in operations or permit conditions pursuant to the adaptive management measures specified in the permit or made pursuant to paragraphs (c)(7)(iv)(B) through (D) of this section. (B) If authorized take levels for the period of review are exceeded in a manner or to a degree not addressed in the adaptive management conditions of the permit, based on the observed levels of take using approved protocols for monitoring and estimating total take, the Service may require additional actions including but not limited to: (1) Adding, removing, or adjusting avoidance, minimization, or compensatory mitigation measures; (2) Modifying adaptive management conditions; (3) Modifying monitoring requirements; and (4) Suspending or revoking the permit in accordance with part 13 of this subchapter B. (C) If the observed levels of take, using approved protocols for monitoring and estimating total take, are below the authorized take levels for the period of review, the Service will proportionately revise the amount of compensatory mitigation required for the next period of review, including crediting excess compensatory mitigation already provided by applying it to the next period of review. (D) Provided the permittee implements all required actions and VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 remains compliant with the terms and conditions of the permit, no other action is required. However, with consent of the permittee, the Service may make additional changes to a permit, including appropriate modifications to avoidance and/or minimization measures or monitoring requirements. If measures are adopted that have been shown to be effective in reducing risk to eagles, appropriate adjustments will be made in fatality predictions, take estimates, and compensatory mitigation. (v) Fees. For permits with terms longer than 5 years, an administration fee of $8,000 will be assessed every 5 years for permit review. (8) The Service may amend, suspend, or revoke a permit issued under this section if new information indicates that revised permit conditions are necessary, or that suspension or revocation is necessary, to safeguard local or regional eagle populations. This provision is in addition to the general criteria for amendment, suspension, and revocation of Federal permits set forth in §§ 13.23, 13.27, and 13.28 of this chapter. (9) Notwithstanding the provisions of § 13.26 of this chapter, you remain responsible for all outstanding monitoring requirements and mitigation measures required under the terms of the permit for take that occurs prior to cancellation, expiration, suspension, or revocation of the permit. * * * * * (11) You are responsible for ensuring that the permitted activity is in compliance with all Federal, Tribal, State, and local laws and regulations applicable to eagles. (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 § 2.2 of subchapter A of this chapter. (3) Except as set forth in paragraph (d)(3)(ii) of this section, an applicant 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 the 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 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 Service waives this requirement for your application. (ii) Applications for eagle incidental take permits for wind facilities must include pre-construction eagle survey information collected according to the following standards, unless exceptional circumstances apply and survey requirements can be modified to accommodate those circumstances after consultation with, and written concurrence by, the Service: (A) Surveys must consist of point-based recordings of bald eagle and golden eagle flight activity (minutes of flight) within a three-dimensional cylindrical plot (the sample plot). The radius of the sample plot is 2,625 feet (ft) (800 meters (m)), and the height above ground level must be either 656 ft (200 m) or 82 ft (25 m) above the maximum blade reach, whichever is greater. (B) The duration of the survey for each visit to each sample plot must be at least 1 hour. (C) Sampling must include at least 12 hours per sample plot per year for 2 or more years. Each sample plot must be sampled at least once per month, and the survey start time for a sampling period must be selected randomly from daylight hours,1 unless the conditions in paragraph (d)(3)(ii)(F) of this section apply. (D) Sampling design must be spatially representative of the project footprint,2 and spatial coverage of sample plots must include at least 30 percent of the project footprint. Sample plot locations must be determined randomly, unless the conditions in paragraph (d)(3)(ii)(F) of this section apply. (E) The permit application package must contain the following: (1) Coordinates of each sample point in decimal degrees (specify projection/ datum). (2) The radius and height of each sample plot. (3) The proportion of each threedimensional sample plot that was observable from the sample point for each survey. (4) Dates, times, and weather conditions for each survey, to include the time surveys at each sample point began and ended. (5) Information for each survey on the number of eagles by species observed (both in flight and perched), and the amount of flight time (minutes) that each was in the sample plot area. 1 Daylight hours are defined as the hours between sunrise and sunset. 2 The project footprint is the minimum-convex polygon that encompasses the wind-project area inclusive of the hazardous area around all turbines and any associated utility infrastructure, roads, etc. E:\FR\FM\16DER4.SGM 16DER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations (6) The number of proposed turbines and their specifications, including brand/model, rotor diameter, hub height, and maximum blade reach (height), or the range of possible options. (7) Coordinates of the proposed turbine locations in decimal degrees (specify projection/datum), including any alternate sites. (F) Stratified-random sampling (a sample design that accounts for variation in eagle abundance by, for example, habitat, time of day, season) will often provide more robust, efficient sampling. Random sampling with respect to time of day, month, or project footprint can be waived if stratification is determined to be a preferable sampling strategy after consultation and approval in advance with the Service. (iii) Application of the Serviceendorsed data quality standards of paragraphs (d)(3)(i) and (ii) 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. (6) Whether the applicant has proposed compensatory mitigation measures that comply with standards set forth under paragraph (c)(1) of this section 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 VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 religious use that requires taking eagles 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) Required determinations. Before we issue a permit, we must find that: (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 the eagle populations within the eagle management unit and the local area population, are compatible with the preservation of bald eagles and golden eagles. (2) The taking is necessary to protect an interest in a particular locality. (3) The taking is associated with, but not the purpose of, the activity. (4) The applicant has applied all appropriate and practicable avoidance and minimization measures to reduce impacts to eagles. (5) 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. (6) 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. (7) 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. (i) Applicants for eagle incidental take permits who submit a completed permit application by July 14, 2017 may elect to apply for coverage under the PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 91553 regulations that were in effect prior to January 17, 2017 provided that the permit application satisfies the permit application requirements of the regulations in effect prior to January 17, 2017. If the Service issues a permit to such applicants, all of the provisions and conditions of the regulations that were in effect prior to January 17, 2017 will apply. ■ 9. Amend § 22.27 by: ■ a. Revising paragraphs (a)(1)(i) through (iv), (a)(3), and (b)(1), (2), and (7); ■ b. Redesignating paragraphs (b)(8) through (10) as paragraphs (b)(9) through (11), adding a new paragraph (b)(8), and revising newly designated paragraph (b)(11); and ■ c. Revising paragraphs (e)(1), (e)(2) introductory text, (e)(2)(ii) and (iii), and (e)(3) through (6). The revisions and addition read as follows: § 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 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 E:\FR\FM\16DER4.SGM 16DER4 91554 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES (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 and cumulative effects, of the permitted take. (8) Compensatory mitigation scaled to project impacts will be required for any permit authorizing take that would exceed the applicable eagle management unit take limits. Compensatory mitigation must conform to the standards set forth at § 22.26(c)(1)(iii). 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 indicate that cumulative unauthorized mortality would exceed 10 percent of the local area population; or VerDate Sep<11>2014 20:36 Dec 15, 2016 Jkt 241001 (iii) 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. * * * * * (11) You are responsible for ensuring that the permitted activity is in compliance with all Federal, Tribal, State, and local laws and regulations applicable to eagles. * * * * * (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 humanengineered 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 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 to eagles. (3) For in-use nests prior to egglaying, the nest is built on a humanengineered structure and creates, or is likely to create, a functional hazard that PO 00000 Frm 00062 Fmt 4701 Sfmt 9990 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 taking eagles from the wild; (iii) Non-emergency activities necessary to ensure public health and safety; (iv) Resource development or recovery operations (under § 22.25, for golden eagle nests only); and (v) Other interests. * * * * * Dated: December 8, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2016–29908 Filed 12–14–16; 8:45 am] BILLING CODE 4333–15–P E:\FR\FM\16DER4.SGM 16DER4

Agencies

[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 91494-91554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29908]



[[Page 91493]]

Vol. 81

Friday,

No. 242

December 16, 2016

Part VI





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; Final Rule

Federal Register / Vol. 81 , No. 242 / Friday, December 16, 2016 / 
Rules and Regulations

[[Page 91494]]


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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are 
revising the regulations for eagle nonpurposeful take permits and eagle 
nest take permits. Revisions include changes to permit issuance 
criteria and duration, definitions, compensatory mitigation standards, 
criteria for eagle nest removal permits, permit application 
requirements, and fees. We intend the revisions to add clarity to the 
eagle permit regulations, improve their implementation, and increase 
compliance, while maintaining strong protection for eagles.

DATES: Effective January 17, 2017.

ADDRESSES: Document Availability: The Record of Decision, Final PEIS, 
and supplementary information used in the development of this rule, 
including the public comments received and the programmatic 
environmental impact statement, may be viewed online at http://www.fws.gov/birds/management/managed-species/eagle-management.php and 
also at http://www.regulations.gov at Docket No. FWS-R9-MB-2011-0094.

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 is finalizing revisions to 
permit regulations for nonpurposeful (incidental) take of eagles and 
take of eagle nests in part 22 of title 50 of the Code of Federal 
Regulations. The revisions are intended to create a permitting 
framework that we can implement more efficiently and thus encourage 
greater public compliance while ensuring protection of bald and golden 
eagles. Our goal is to enhance protection of eagles throughout their 
ranges through implementation of mitigation measures that avoid and 
minimize, and compensate for, adverse impacts from otherwise lawful 
activities.
    The Service is modifying the definition of the Bald and Golden 
Eagle Protection Act's ``preservation standard,'' which requires that 
permitted take be compatible with the preservation of eagles. We are 
also removing the distinction between standard and programmatic 
permits, codifying standardized mitigation requirements, and extending 
the maximum permit duration for eagle incidental take permits (50 CFR 
22.26). The regulations also include a number of additional revisions 
to the 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 authorizes the Secretary 
of the Interior to issue regulations to permit the ``taking'' of eagles 
for various purposes, including the protection of ``other interests in 
any particular locality'' (16 U.S.C. 668a), provided the taking is 
compatible with the preservation of eagles. In 2009, the Service 
promulgated regulations at 50 CFR part 22 that established two new 
permit types for take of eagles and eagle nests (74 FR 46836; Sept. 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. In these 
revised regulations, we refer to nonpurposeful take as incidental take, 
which has the same meaning as conveyed in the 2009 regulations: Take 
that is associated with but not the purpose of an activity.
    The Eagle Act requires the Service to determine that any take of 
eagles the Service authorizes is ``compatible with the preservation of 
the bald eagle or the golden eagle'' (16 U.S.C. 668a). 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 stable or increasing breeding 
populations'' (74 FR 46836, see p. 46837).
    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 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 environmental assessment (EA) or 
environmental impact statement (EIS) to accompany the rulemaking rather 
than apply a categorical exclusion under the National Environmental 
Policy Act (NEPA; 42 U.S.C. 4321-4347). The effect of the ruling was to 
return the maximum programmatic permit tenure to 5 years.
    The 2012 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 EA or EIS pursuant to NEPA (79 FR 35564; June 23, 
2014). The Service then held five public scoping meetings between July 
22 and August 7, 2014. We received a total of 536 comments during that 
public comment period. Upon removal of duplicates, there were a total 
of 517 unique comments. We reviewed the comments and used them to 
develop proposed regulations and a draft programmatic environmental 
impact statement (DPEIS), which we released on May 6, 2016, for a 60-
day public comment period (81 FR 27934). The draft PEIS and proposed 
regulations are available on the Internet at: http://eagleruleprocess.org/ and at http://www.regulations.gov at Docket No. 
FWS-R9-MB-2011-0094. We received 780 comments on the proposed rule and 
DPEIS from federal agencies, states,

[[Page 91495]]

tribes, nongovernmental organizations, industry associations, 
individual companies, and members of the public. These comments were 
the basis for several changes, discussed below, that we made to the 
proposed action in this rule.
    In accordance with NEPA requirements (40 CFR 1506.6(b)), we 
announce the availability of the Record of Decision (ROD) for the 
Service's final PEIS for the eagle rule revisions and management 
objectives. The ROD is the final step in the NEPA process for the eagle 
rule revision process, which includes revisions to the regulations 
governing permits for incidental take of eagles and take of eagle 
nests. The ROD describes the Service's decision; identifies the other 
alternatives considered, including the environmentally preferable 
alternative; explains the Service's plans for mitigation; and states 
what factors, including considerations of national policy, we 
considered in making the decision. The ROD and final PEIS are available 
at http://www.fws.gov/birds/management/managed-species/eagle-management.php and also at http://www.regulations.gov at Docket No. 
FWS-R9-MB-2011-0094.
    Bald eagle populations have continued to increase throughout the 
United States, which effectively increases 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 have not 
provided an optimal framework for authorizing incidental take under 
these circumstances, particularly for incidental take resulting from 
long-term, ongoing activities. Difficulties in establishing new permit 
regulations are to be expected and the Service contemplated that 
changes to the permit regulations would be necessary based on 
experience gained through implementing the new permit framework. One of 
these challenges has been a general perception that the 2009 permitting 
framework did not provide enough flexibility to issue eagle take 
permits in a timely manner. Indeed, only one programmatic permit has 
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 management approach established with the 2009 eagle 
permit regulations and final EA (FEA), permitted take of bald eagles 
has been 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 mortality or disturbance 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 compensatory 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 were 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. Additionally, the Service now 
has a much better understanding of the seasonal, annual, and age-
related movement patterns of golden eagles. These data are incorporated 
into the updated management framework.
    Through 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 
have been 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.
    Encouraging more proponents of activities that incidentally take 
eagles to apply for permits is a critically important means of reducing 
incidental take. The intent of these regulations is not to encourage 
construction and operation of projects that take eagles (an eagle 
incidental take permit only authorizes take of eagles; it is not a 
prerequisite or an authorization to construct and operate projects that 
will result in eagles being taken). Instead, we are strongly 
encouraging such projects to seek authorization for eagle take and 
thereby implement conservation measures that reduce incidental take and 
benefit eagles. Unpermitted activities have taken and will continue to 
take eagles with or without this permit program. In fact, the Service's 
recent analysis of causes of death of golden eagles shows that, 56 
years after enactment of the Eagle Act, unpermitted human-caused 
mortality is still the leading cause of death of golden eagles in the 
United States, and risks causing

[[Page 91496]]

population declines for this species. Our goal is to reduce the number 
of unauthorized activities through enforcement where appropriate and by 
implementing an efficient regulatory framework that encourages 
proponents of activities that incidentally take eagles to seek and 
obtain legal authorization.
    The Service has successfully pursued enforcement actions against 
project proponents that incidentally take eagles and will continue to 
do so, but enforcement alone is an inefficient means to manage and 
conserve eagles nationwide and is constrained by our limited law 
enforcement resources. Therefore, our primary means of conserving and 
protecting eagles is to ensure that our incidental take permit 
regulations encourage more proponents to seek and obtain permits for 
activities that otherwise would continue to take eagles without 
implementing the conservation measures that are critical to eagle 
conservation nationally, regionally, and locally.

Status of Eagle Populations

    The Service is updating its management objectives for eagles 
established by the 2009 eagle permit regulations and FEA. Management 
objectives direct strategic management and monitoring actions and 
ultimately determine what level of permitted eagle take we can allow. 
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, which is available at http://eagleruleprocess.org, estimates population sizes, productivity, and 
survival rates for both species; analyzes 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 serves as the biological basis for 
the revised regulatory management framework in these regulation 
revisions and the preferred alternative in the programmatic EIS (PEIS). 
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 http://eagleruleprocess.org.
    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 of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.)), 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 41,500 (20th quantile = 35,000) in 2014, updated 
from 40,000 in the draft PEIS based on comments we received from the 
Alaska Department of Fish and Game. However, although the golden eagle 
population trend estimate based on current surveys is stable, an 
estimate from a population model similar to that used for the bald 
eagle suggests the population in the western United States might be 
declining toward 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 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 (the number of eagles that can be removed from the population 
while still achieving a stable population compared to the 2009 
baseline) of golden eagles under those conditions would be 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: http://eagleruleprocess.org.

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. 
The Service defined this preservation standard in the preamble to the 
2009 regulations to mean ``consistent with the goal of stable or 
increasing breeding populations.'' We are incorporating a modified 
definition of that standard into the regulations. We

[[Page 91497]]

now define the preservation standard to mean ``consistent with the 
goals of maintaining stable or increasing breeding populations in all 
eagle management units and the persistence of local populations 
throughout the geographic range of each species.'' The timeframe the 
Service used for modeling and assessing eagle population demographics 
is 100 years (at least eight generations) for both eagle species 
relative to the 2009 baseline. ``Eagle management unit'' is defined as 
``a geographically bounded region within which permitted take is 
regulated to meet the management goal of maintaining stable or 
increasing breeding populations of bald or golden eagles.''
    The eagle management objective embodied in the revised definition 
of the preservation standard 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)).
    During the scoping period for the PEIS, the Service sought and 
received public comment on how the preservation standard should be 
defined and applied. We 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 elected to retain the quantitative approach because it is 
explicit, allows less room for subjective interpretation, and can be 
consistently implemented throughout the country and across the types of 
activities that require permits. Our 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 (16 
U.S.C. 1361 et seq.).
    The revised preservation standard--``consistent with the goals of 
maintaining stable or increasing breeding populations in all eagle 
management units and the 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, and to better align 
with State and tribal interests in local eagle population management. 
To meet this objective in a scientifically rigorous manner, the Service 
manages eagles at two scales: (1) Eagle management units (EMUs), which 
are regional populations of eagles over which the Service strives to 
meet the objective of population stability or growth, relative to 
population size in the baseline year of 2009, over 100 years; and (2) 
local area populations, which are finer-scale areas defined by eagle 
dispersal criteria that are specific to each permitted action and over 
which the Service seeks to ensure take does not cause the extirpation 
of either eagle species. The Service used modern scientific methods to 
estimate the take rate (the proportion of the population that can be 
removed annually) that can be authorized for each species of eagle in 
each EMU while meeting our management objectives. These estimates are 
in the form of probability distributions that account for scientific 
uncertainty in both the modeling process and in the biological data 
used in the models. For the liberal PEIS alternatives, the Service used 
the median of model estimates for important parameters (e.g., 
population size, take rate) to calculate take limits (the number of 
eagles that can be removed annually at the EMU- and, separately, the 
LAP-scale and still meet the management objective); this approach 
shares the risk posed by uncertainty equally between being under-
protective of eagles and being unnecessarily over-restrictive on 
activities that might take eagles. For the conservative PEIS 
alternatives, the Service used values that allocated risk in an 80:20 
ratio in favor of being over-protective of eagles. By defining the 
eagle preservation standard in this way, and analyzing the effects of 
take within those take limits in the PEIS, the analytical burden for 
each permit decision is greatly reduced, allowing the Service to make 
informed permitting decisions at an expedited rate.
    The regulatory revisions in this final rule 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 PEIS.
    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, and 
considering the updated demographic data compiled by the Service and 
presented in the Status Report, we have determined there is 
considerable capacity for sustainable take of bald eagles. Under the 
management approach we are adopting, the sustainable annual take limit 
(without compensatory mitigation) would be 3,742 bald eagles in the 
coterminous United States. Initially, the Service proposed to set 
unmitigated take limits of only 500 bald eagles annually in Alaska 
because our population data there are less rigorous than elsewhere in 
the United States. However, in response to compelling comments from the 
Alaska Department of Fish and Game (see Response to Public Comments, 
below, for more details), we have revised the sustainable take rate for 
Alaska to 3,776, based on the sustainable take rate of 6% under the 
preferred alternative in the PEIS. The Service does not expect 
authorized take under the revised sustainable take limits to approach 
the new take limit in Alaska or nationwide. In fact, there is nothing 
in the revised regulations that will increase take, though we hope more 
ongoing unpermitted take will be captured under permits in the future.

[[Page 91498]]

    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 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, requiring that all authorized take be 
offset by compensatory mitigation.
    We are 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 are used to 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 in spring 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 
better aligns with seasonal movement patterns of both species and 
better addresses geographic patterns of risk given those seasonal 
movement patterns.
    We are aware of preliminary data on golden eagles tracked with 
satellite telemetry that indicate a flyway configuration for EMUs may 
not capture movement patterns of resident golden eagles as well as 
finer-scale landscape mapping systems. The results of that study were 
intended to be completed and included in the Status Report, but the 
work was not completed in time. In its place the Service conducted an 
analysis of banding data, and those results are reported in the Status 
Report. Neither analysis is ideal because the distribution of deployed 
bands and satellite tags has not been random. While the banding data 
have the advantage of much larger sample sizes, the satellite-tag data 
have the advantage of much more precise tracking of a smaller number of 
individuals. The Service will consider the information from the 
satellite telemetry study in future re-assessments of eagle status and 
management objectives.
    In the approach we are now adopting, we will use the flyways as the 
EMUs for both species--with some modifications. The 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 combining 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 PEIS 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.
    EMU take limits are increased accordingly because the flyway 
management units are fewer and larger than the EMUs currently in use 
(for bald eagles; golden eagle take limits would be zero in all 
management units, unless offset). Each flyway unit covers several 
current EMUs. In some ways, increasing the EMU size could be less 
protective of eagle populations at more local scales. However, any 
potential decreased protection of local eagle populations caused by 
increasing the size of the EMUs is more than compensated for by two 
provisions designed to increase protection of eagles at more local 
scales. First, as noted earlier, we 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, and 
codify the new definition in the regulations at 50 CFR 22.3. The 
definition reads: ``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 the persistence of local populations throughout the geographic 
range of each species.''
    These revised regulations also enhance protection of eagles at the 
local scale by incorporating a local area population (LAP) cumulative 
effects analysis into the permit issuance criteria. The LAP analysis, 
which is detailed in Appendix F of the Eagle Conservation Plan 
Guidance, Module 1--Land-based Wind Energy (ECPG) (USFWS 2013), 
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 a 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).
    We derive the size of the LAP by multiplying the 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 movements 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

[[Page 91499]]

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 and 109 miles for golden eagles. 
These could change in the future if additional data indicate the need 
for adjustment. The LAP cumulative effects analysis is described in 
more detail in the Status Report.
    Prior to this rulemaking, the LAP cumulative effects analysis has 
been used as guidance. Under these revised regulations, the LAP 
analysis is 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 if compensatory mitigation offsets 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 will 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 have already analyzed the effects of 
authorizing take of up to 5% of the LAP in the PEIS for these 
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 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 will 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. While evidence of excessive unpermitted take does not necessarily 
preclude the Service from issuing a permit, it would be taken into 
consideration in evaluating whether to issue the permit and is likely 
to entail additional environmental analysis to determine whether 
issuance of the permit is compatible with the preservation of eagles.
    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.
    For disturbance to have the potential of a population effect, it 
has to result in a loss of potential productivity. In 2009, the Service 
used the EMU-specific mean number of young fledged per occupied nesting 
territory for each species per year as the expected loss under nest 
disturbance permits for each instance of nest disturbance. We use the 
same approach in this revision, but with updated take values based on 
the new productivity information for each eagle species (see the Status 
Report).

Nonpurposeful (Incidental) Take Permits (50 CFR 22.26)

    We are changing 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 endangered and 
threatened species. However, the term ``nonpurposeful'' also caused 
confusion because it is not a commonly used word. The meaning of 
``incidental'' 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. Because 
``nonpurposeful take'' and ``incidental take'' mean the same thing, the 
change in nomenclature does not in any way affect the circumstances and 
manner in which these permits will be issued.
    In these revised regulations, the types of incidental take permits 
we can issue under Sec.  22.26 are reduced from two to one. There will 
no longer be separate categories for standard and programmatic permits. 
Having two separate categories has sometimes led to confusion because 
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 was 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 eliminate 
the distinction between standard and programmatic permits. All Sec.  
22.26 permits are now simply ``eagle incidental take permits'' or 
``incidental take permits.''

[[Page 91500]]

    Under the 2009 regulations, programmatic permits were contingent 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.'' In 
contrast, we have required that applicants for standard permits under 
the current regulations reduce potential take to a level where it is 
``practicably unavoidable'' [emphasis added]. Thus, programmatic permit 
applicants were subject to 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.'' Thus the revised regulations apply 
the ``practicability standard'' to all Sec.  22.26 permits.
    We are revising the definition of ``practicable'' by adopting the 
definition from the Service's proposed mitigation policy (see 81 FR 
12380; Mar. 8, 2016), slightly modified for specific application to 
eagle permits. The new definition reads: ``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 eagles and the activity's overall purpose, scope, 
and scale.'' The revised definition captures the essential elements of 
the old definition, while promoting a consistent approach to how the 
Service applies compensatory mitigation requirements across all 
programs.
    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, the requirement for 
ACPs is removed from the regulations. As discussed above, all 
permittees would be required to avoid and minimize impacts to eagles to 
the maximum degree practicable. Although the ACP requirement no longer 
applies, the Service will require potential permittees to implement all 
practicable best management practices and other measures that are 
reasonably likely to reduce eagle take. Permit applicants that cannot 
reduce or compensate for take to levels that are compatible with eagle 
preservation will not qualify for a permit.
    We believe a 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. The 5-year maximum permit duration 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 will provide a degree of certainty to project proponents 
because they will 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 
that occurs, the opportunity to apply avoidance, minimization, and 
other mitigation measures is lost. We believe 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, will enhance eagle conservation in contrast to 
project proponents avoiding the permitting process altogether because 
they perceive the process as overly onerous.
    Under the revised regulations, the Service will evaluate each long-
term 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. Long-term permits are required to include adaptive management 
provisions that provide for additional or changed mitigation measures 
under specified conditions, for example, under increasing levels of 
eagle take. Provided permittees are in compliance with their permit, 
including adaptive management measures and take levels, 5-year reviews 
will primarily consist of updating take estimates and related 
compensatory mitigation for the next 5 years. Conversely, the 5-year 
review provides an opportunity for the Service to amend the permit to 
reduce or eliminate conservation measures or other permit conditions 
that prove to be ineffective or unnecessary.
    Under the proposed regulations, a long-term permittee may also have 
been required to undertake additional, practicable conservation 
measures not spelled out in the adaptive management permit conditions, 
even if the permittee is in compliance with the terms of the permit, if 
such measures were reasonably likely to reduce risk to eagles based on 
the best scientific information available. However, these final 
regulations limit such additional conservation measures to when 
authorized take levels are exceeded in a manner or to a degree not 
addressed in the adaptive management conditions of the permit. Based on 
public comment, the proposed provision appeared likely to 
disincentivize project proponents from seeking permits. Rather, for a 
permittee in compliance with permit terms and conditions, conservation 
and mitigation measures beyond the terms of a permit are voluntary. 
Take estimates and compensatory mitigation requirements would be 
adjusted if such measures were implemented. Permit suspension and 
revocation procedures will remain available for extreme cases if new 
measures sufficient to meet the preservation standard cannot be 
negotiated with the permit holder.
    The revised regulations require applicants and permittees to use 
Service-approved protocols for conducting pre-application surveys, 
fatality predictions, and monitoring under permits, unless waived by 
the Service. The regulations provide that, if the Service has, through 
rulemaking procedures, officially issued or endorsed survey, modeling, 
or other data quality standards for the activity, those are the 
standards and protocols that must be used (unless the Service waives 
the requirement for that applicant). Applicants engaged in other 
activities for which the Service has not adopted official protocols 
must coordinate with the Service to develop project-specific monitoring 
and survey protocols. The requirement to use Service-approved protocols 
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. 
Specific application of these requirements to wind energy facilities is 
described below under Survey Requirements for Incidental Take Permits 
for Wind Energy Facilities.

[[Page 91501]]

    While we have not officially issued fatality prediction models or 
pre-application monitoring protocols for activities other than wind 
energy generation, 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 permit application 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.

Survey Requirements for Incidental Take Permits for Wind Energy 
Facilities

    Many of the comments on the proposed rule focused on the subset of 
prospective incidental take permits that relate to wind energy. These 
comments were helpful, yet indicated a general lack of understanding of 
how the Service's proposed approach to manage incidental take at wind 
facilities under an adaptive management framework is intended to work. 
For this reason, and because the permitting approach developed for wind 
facilities provides an example of how the Service intends to implement 
incidental take permitting for other activities, we have expanded our 
description of the overall approach here in the preamble to the rule. 
The Service's emphasis on eagle incidental take permits for wind 
facilities reflects Administration priorities for expanded wind energy 
development and a desire to minimize the impacts of that growth on 
eagles; it does not reflect a belief that wind development poses a 
disproportionate risk compared to other activities that may 
incidentally take eagles, nor does it reflect any greater availability 
of permits to wind companies versus other types of industries that may 
need eagle incidental take permits.

Preconstruction Survey Standards for Wind Energy Facilities

    In the proposed rule, the Service proposed to incorporate by 
reference Appendices C and D of the ECPG as standards for collection 
and analysis of data to support eagle incidental take permit 
applications for wind facilities, and we indicated our intent to 
develop similar standards for other activities in the future. This 
proposal was not supported by many commenters for a range of reasons, 
but primarily because of a perceived lack of demonstrated scientific 
credibility in the methods and tools. However, the Service does not 
agree that abandoning the concept of standardized data collection for 
permits is a tenable way forward. First, one major objective of this 
rulemaking is to expedite the permitting process, and our experience 
has been that the negotiation over and use of disparate methods for 
initial data collection contribute greatly to the time required to 
develop and process a permit application. Second, as we explain below, 
the Service intends to use formal adaptive management to improve the 
scientific rigor and the performance of the impact-prediction tools 
used in the eagle permitting program. The Service's adaptive management 
process requires a minimum level of standardization in the initial 
input data where those standards exist, and this will result in each 
permit contributing to and improving the scientific credibility of the 
permitting process.
    For now, the only activity for which we have such standards is wind 
energy generation. Those standards have been through two rounds of 
notice and public comment, as well as two rounds of scientific peer 
review. Rather than incorporate the relevant appendices from the ECPG 
into the rule by reference, in response to the comments received the 
Service has instead decided to include minimal pre-construction survey 
standards for eagle incidental take permits for wind facilities 
directly in the rule itself. The rule language was developed from the 
specific recommendations in Appendix C of the ECPG, and represents the 
minimum level of information and the least sophistication in sampling 
design that will be acceptable for the Service to evaluate and decide 
whether to issue an eagle take permit for a wind facility. These 
standards will ensure that representative eagle exposure data are 
available with which to predict eagle fatalities consistent with the 
Service's adaptive management program. The rule allows for deviations 
from the minimum standards, but only if the applicant consults with the 
Service early in the project-development process. In most cases both 
the Service and permit applicant will benefit by using this exception 
to design surveys that are designed to accommodate variation in eagle 
abundance over both space and time.
    The precision, consistency, and utility of data from point count 
surveys for eagles can be much improved by incorporating some basic, 
common-sense sideboards into the survey design as discussed in the ECPG 
(Appendix C). These include: (1) Conducting eagle surveys and small 
bird surveys separately, to avoid overlooking large birds while 
searching at a much smaller scale for small songbirds; (2) using 
trained observers that are capable of accurate bird identification and 
distance estimation; (3) distributing surveys across daylight hours 
(e.g., morning: Sunrise to 1100 hours; midday: 1101-1600 hours; 
evening: 1601 hours to sunset), and by designing surveys to more 
intensively cover the midday period in areas where eagle flight is more 
likely at that time of day; and (4) conducting surveys under all 
weather conditions except when visibility is less than 800 meters (m) 
horizontally and 200 m vertically.

Adaptive Management and Wind Energy Collision Risk Modeling

    An overarching issue with eagle incidental take permits is 
uncertainty. For wind facilities, there is considerable uncertainty 
regarding the risk of turbines to eagles, factors associated with that 
risk, and whether there are tangible ways to reduce the risk. Moreover, 
in 2009, when the Service established the incidental eagle take 
regulations, there was no scientifically accepted approach for 
quantitatively estimating the probability of eagle take at individual 
wind facilities. This quantitative probability estimation is necessary 
for the Service to establish a take limit for each permit and to ensure 
that EMU take limits are not exceeded, or if they are exceeded, that 
appropriate compensatory mitigation is accomplished. The Service has 
adopted two key principles for eagle incidental take permitting at wind 
facilities to address this uncertainty: (1) Use of formal adaptive 
management; and (2) being risk-averse at the outset with respect to 
estimating impacts on eagles.
    The Department of the Interior has a long history of approaching 
decisions in situations fraught with uncertainty using adaptive 
management (Williams et al. 2009). Adaptive management is a process of 
adaptive learning, whereby: (1) Predictions are made regarding 
anticipated effects of an activity; (2) data regarding the outcomes of 
the activity are collected; (3) the predictions are updated to reflect 
the actual outcomes of the activity; and (4) the updated predictions 
are used to change the activity, either in the future at the same site 
or at other places where the same activity is being contemplated. The 
Service has described its adaptive management framework for eagle 
incidental take permits for wind energy facilities in the ECPG 
(Appendix A)

[[Page 91502]]

(U.S. Fish and Wildlife Service 2013), and the overall framework is 
intended to account for uncertainty in the effects of wind facility 
siting, design, and operations on eagles. More broadly than for just 
wind energy, the adaptive management process is also intended to 
address uncertainty in compensatory mitigation and the effects of take 
rates on eagles. With regard to managing risk, the survey, monitoring, 
and information collection standards for eagle incidental take permits 
are all designed to provide data that allow for the quantification of 
uncertainty, primarily by providing estimates in the form of 
probability distributions. This allows the Service to explicitly 
describe its risk tolerance (i.e., being protective of eagles or 
protective of interests that might take eagles) for each aspect of the 
permitting process. Together, the adaptive management and risk 
management processes function as a means for describing how the risk, 
in the form of uncertainty, is shared between the protected resource 
and the regulated community.
    The part of the Service's adaptive management process for eagle 
incidental take permits that has generated the greatest debate is the 
approach and model used to predict eagle fatalities at wind facilities. 
For that reason, and because this is an excellent example of the 
Service's philosophy regarding the application of adaptive management 
to eagle permitting, we describe the fatality prediction process here 
in some detail. The Service's baseline fatality prediction model, also 
referred to as a collision risk model (CRM), is thoroughly described in 
Appendix D of the ECPG and in New, et al. (2015). The key points are 
that the CRM uses: (1) A project-specific estimate of eagle exposure; 
(2) a project-specific estimate of the amount of hazardous area and 
time that will be created by the project; and (3) an estimate of the 
probability that an exposed eagle that enters the hazardous area will 
be struck and injured or killed by a turbine blade; to generate (4) an 
annual eagle fatality estimate in the form of a probability 
distribution. The model assumes a predictable relationship between 
eagle exposure, hazardous area, and the risk of fatalities--a 
relationship that existing literature, some commenters, and the Service 
agree is not straightforward. The ECPG identifies 11 general categories 
of covariates (variables that help explain variation in the parameter 
of interest) that the Service believes may affect eagle collision 
probability to some degree. However, these are not presently 
incorporated into the CRM because, as pointed out by peer reviewers of 
the draft ECPG, scientific support for the role of these factors in 
collision risk is speculative and not quantifiable at this time. 
Furthermore, the effects of these factors may be varied across 
locations.
    The CRM uses Bayesian statistics to formally combine existing 
(prior) data with project-specific data to determine eagle exposure and 
collision probability (assuming the number and size of turbines to be 
built, and thus hazardous area, are known). The Service requires eagle 
incidental take permit applicants to conduct pre-construction eagle use 
surveys within the footprint of the planned wind facility to generate 
project-specific data on pre-construction eagle exposure. These pre-
construction survey data are formally combined with prior information 
on eagle exposure nationally to generate a probability distribution for 
eagle use for the specific project area. In the case of collision 
probability, however, there are no project-specific data to combine 
with the prior data until after the project has operated for several 
years; thus only the prior information is available to be used for the 
initial collision probability estimate. The Service uses prior 
information on collision probability from the only wind facilities that 
had publicly available data on eagle use and post-construction 
fatalities at the time the ECPG was written in 2013. These post-
construction data came from four facilities, did not include 
information for bald eagles, and some data were from older-style wind 
turbines that might have different collision probabilities than modern 
turbines. However, these potential data deficiencies only affect the 
initial eagle fatality estimates at permitted wind facilities. This is 
because the Service's adaptive management approach calls for formally 
combining the prior information with standardized data collected on 
actual eagle fatalities after the facility becomes operational. These 
updates would occur no less frequently than once every 5 years at each 
facility. Such updates will naturally correct for any bias in the 
initial ``collision-prior-based'' fatality estimate, so that the 
fatality estimates over most of the life of a wind facility will be 
heavily weighted towards actual fatality data from the site. Moreover, 
because the post-construction fatality information will be collected 
under standardized protocols required by the terms and conditions of 
each permit, the data can be combined with data from other permitted 
wind facilities to update and improve the collision probability prior 
for the national CRM. Thus, the Service intends to improve the 
predictive accuracy of the CRM both at the individual project level and 
nationally through standardized use as a formal part of its adaptive 
management process. We could not achieve improved accuracy of the CRM 
without standardized use of these protocols.
    Uncertainty in the project-specific fatality estimates comes from 
both the prior and project-specific data for eagle exposure, and, 
initially, from the prior information on collision probability. The 
Service has made the decision to manage the quantified uncertainty in 
the CRM estimates in a manner that reduces the risk of underestimating 
eagle fatalities at wind facilities. The Service views this as 
important both to ensure the risk to eagles is not underrated, but also 
to minimize the chance that a permittee will illegally exceed his or 
her authorized eagle take limit. The median (50th quantile) fatality 
rate of the CRM-generated probability distribution is the point on the 
distribution at which there is an equal risk of under- and 
overestimating eagle fatalities. The Service uses the 80th quantile of 
the CRM fatality probability distribution to determine the take limit 
for incidental take permits, which shifts the risk to a 20% chance of 
underestimating eagle take. Improvements in the precision of the CRM 
estimates through adaptive management, both at the project level and 
nationally, should decrease uncertainty and thus shrink the magnitude 
of the difference between the median fatality rate and the permitted 
take limit over time. For now, however, the Service acknowledges that 
its fatality estimates for wind facilities are both higher than what is 
expected and higher than what is likely to be observed, and that this 
bias is intentional.
    The Service's adaptive management approach for the incidental eagle 
take permits necessitates the collection of standardized pre- and post-
construction data and the use of the CRM, or a model much like it, to 
generate and update fatality estimates. For this reason, in the 
proposed rule the Service contemplated codifying its current guidance 
regarding data collection and fatality predictions in the regulations. 
There was considerable opposition to this among commenters, with most 
opponents citing the need to remain flexible so that new information 
could be incorporated rapidly into the permitting process. In response 
to these comments, the Service has modified its proposal for the final 
rule in two substantive ways. First, the final regulations do not 
incorporate by reference Appendices C and D of the ECPG. However, 
because the adaptive

[[Page 91503]]

management process cannot function credibly without standardized pre-
construction site-specific eagle exposure data, the Service has instead 
incorporated minimum standards for such data directly into the final 
rule, subject to waiver under exceptional circumstances (see above 
discussion on pre-construction survey protocols for wind energy 
facilities). Second, the Service will not require permit applicants to 
use the CRM to estimate eagle fatalities for their permit applications. 
Instead, project proponents can use any credible, scientifically peer-
reviewed model to generate eagle fatality and associated uncertainty 
estimates for their permit applications. The Service will then use the 
standardized project data supplied by the permit applicant and the 
Service's CRM to generate a predicted number of fatalities for each 
incidental eagle take permit for a wind facility, and the 80th quantile 
of the CRM estimate will be the take limit for the permit except under 
exceptional circumstance. The Service will treat any alternative models 
used by the permit applicant as candidate models whose performance may 
be compared formally to that of the CRM as part of the adaptive 
management process. Any alternative models that, over time, demonstrate 
better or comparable predictive performance to the CRM could eventually 
be formally incorporated into the adaptive management process for 
estimating permit take limits.
    The Service intends the adaptive management process to eventually 
provide: (1) A better understanding of, and ability to quantify, 
factors associated with eagle collision risk; (2) a more accurate 
estimate of collision probability for bald eagles, and (3) data 
suitable for updating the original golden eagle collision and exposure 
priors (the exposure prior is the average eagle exposure value based on 
all available previously existing information) for the CRM. However, to 
date, so few incidental take permits have been issued at wind 
facilities that no progress has been made in these areas. In 
particular, the lack of progress towards updating the collision 
probability prior has generated opposition to the entire eagle 
incidental take permit adaptive management process. Wind facility 
operators and their consultants believe the CRM with the original 
collision prior (the estimated probability, based on all available 
previously existing information, that an eagle that flies into the 
hazardous area around wind turbine will collide with a blade) produces 
fatality estimates that are too large, and in cases where compensatory 
mitigation is required (e.g., for take of golden eagles), the 
mitigation requirements exceed what is necessary. This concern is 
offset somewhat by the Service's policy that excess mitigation 
accomplished in the first 5 years of a wind project's operations will 
be credited towards future year obligations (which, as described 
briefly above and in more detail below, will be based on CRM estimates 
that are adjusted after no more than 5 years of operation to include a 
site-specific collision probability). However, this policy has not 
appreciably reduced concern about use of the CRM, as expressed by many 
commenters on the proposed rule. To address this particular concern, 
within 18 months the Service intends to update the collision prior for 
the CRM using publicly available data collected at wind facilities 
operating without incidental eagle take permits. The Service believes 
that these types of data can be appropriate for such an update, 
provided the data and protocols under which they were collected can be 
verified and shown to be appropriate, and that the wind facilities that 
make their data available are sufficiently representative of a cross 
section of wind facilities in operation today. The Service is already 
engaged in a process to update priors and other data for modeling eagle 
take and plans to revise the CRM and Appendix D of the ECPG through a 
public process. As part of this process the Service will also consider 
ways of expediting improvements in the CRM relative to incorporating 
other covariates associated with eagle risk and a species-specific 
prior collision probability for bald eagles.
    As stated above, the Service intends to maintain its policy of 
disproportionately sharing risk to avoid underestimating eagle take at 
individual wind facilities. We believe this is appropriate because the 
consequences of underestimating eagle take are far greater than the 
consequences of overestimating take, and not just because of unintended 
consequences on eagle populations. Avoiding underestimating eagle take 
significantly reduces uncertainty for permittees. For example, if eagle 
take at the individual permit level was consistently underestimated, 
many permittees would exceed their permitted take limits, necessitating 
permit amendments, additional costly and unplanned after-the-fact 
compensatory mitigation actions, and possible enforcement with 
associated fines. For bald eagles with positive EMU take thresholds, 
consistently underestimating take could lead to permitted take 
exceeding the EMU take limit, which would necessitate retroactively 
requiring permittees that initially had no compensatory mitigation 
requirements to implement mitigation after the fact. Further, if LAP 
take limits were unexpectedly exceeded, NEPA compliance for permits 
overlapping the affected LAP would have to be reviewed. Although these 
consequences are most likely if there is a systematic bias in the 
fatality estimates themselves, even with an unbiased estimator, some of 
these consequences could be expected with 50% of permits if the Service 
were to use the median fatality rate as the take limit for individual 
permits. In contrast, if permitted take is set at a higher percentile 
of the fatality prediction, the primary consequences are that the 
permittee is likely to exceed actual compensatory mitigation 
requirements over the first 5 years of operation (if compensatory 
mitigation is required). Additionally, the Service would likely 
routinely debit some take from the EMU and LAP take limits 
unnecessarily, thereby underestimating available take when considering 
new permit requests. Both of these issues are at least partially 
remedied when initial take estimates for projects are adjusted with 
project-specific fatality data after the first 5 years of operation. At 
that time, permittees receive credit for any excess compensatory 
mitigation they have achieved, as described above, and the debits from 
the EMU and LAP take limits are recalibrated to reflect the updated 
expectations for future take. These actions are comparatively simple to 
implement, and do not have the same kind of far-reaching consequences 
as with underestimates.

Monitoring and Mitigation

    Most permittees will be required to monitor eagle take to assess 
whether and how much take occurs under the permit. Reported take will 
be based on surveying and monitoring protocols required by the permit. 
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 agree with the large number of commenters that urged the Service 
to require third-party monitoring for some permits. As we stated in the 
preamble to the proposed regulations, we were considering that option. 
These final regulations require that, for all permits with durations 
longer than 5 years, monitoring must be conducted by qualified, 
independent entities report

[[Page 91504]]

directly to the Service. In the case of permits of 5-year durations or 
shorter, such third-party monitoring may be required on a case-by-case 
basis. We do not believe there will be significant additional costs 
imposed by the requirement for third-party monitoring. Most companies 
already rely on and pay for consultants to conduct project monitoring, 
presumably because it is more cost-effective than supporting those 
activities ``in-house.''
    We expect that most long-term permits will authorize incidental 
lethal take rather than disturbance. Those conducting monitoring for 
permits that authorize eagle mortalities will be required to search for 
injured and killed eagles and to estimate total take using methods 
approved by the Service. Permittees will 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 the 
probability of detection.
    The Service defines ``mitigation'' to sequentially include: 
Avoidance, minimization, rectification, reduction over time, and 
compensation for negative impacts. Under Departmental policy (600 DM 
6), ``compensatory mitigation'' means ``to compensate for remaining 
unavoidable impacts after all appropriate and practicable avoidance and 
minimization measures have been applied, by replacing or providing 
substitute resources or environments (see 40 CFR 1508.20) through the 
restoration, establishment, enhancement, or preservation of resources 
and their values, services, and functions.'' The 2009 eagle 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, we have 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 46836, p. 46844). 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 46836, p. 46845).
    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 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.
    These regulations require compensatory mitigation for any permit 
authorizing take that would exceed authorized take limits. Compensatory 
mitigation for this purpose must demonstrate it offsets authorized take 
by reducing another ongoing form of mortality by an equal or greater 
amount than the unavoidable mortality, or increasing the eagle 
population by an equal or greater amount.
    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. This means that the golden eagle 
population is likely in decline and not meeting the Service's 
preservation goal of a stable or increasing breeding population. As a 
result, compensatory mitigation for any authorized take of golden 
eagles that exceeds take thresholds will be designed to offset the 
authorized take at a 1.2 to 1 mitigation ratio to further an outcome 
consistent with the preservation of golden eagles as the result of the 
permit. We believe this baseline mitigation ratio appropriately 
balances meeting our obligations under the Eagle Act with what is 
reasonable, fair, and practicable to permittees. Based on the 
uncertainty in the effectiveness of a particular compensatory 
mitigation practice and other factors common to mitigation programs, we 
may require further adjustments to mitigation ratios.
    To be compatible with the preservation of eagles, take that would 
compromise the persistence of local populations of eagles may also 
require compensatory mitigation. The regulations account for this by 
generally requiring compensatory mitigation for cumulative authorized 
take exceeding 5% of the LAP 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 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). We have no data to indicate that ongoing 
unauthorized take of bald eagles is less than that of golden eagles, 
and intend 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 because of the 
improved status of bald eagles, states, tribes, and localities have 
communicated their interest in seeing regulatory safeguards to protect 
local bald eagles as well as golden eagles. In

[[Page 91505]]

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. We received comments asserting that it 
is unfair for the Service to impose a greater than one to one 
compensatory mitigation ratio for golden eagle take permits because 
people seeking to comply with the regulations should not be required to 
address impacts caused by other human activities for which no one is 
being held accountable. Similar concerns were expressed regarding the 
consideration of unauthorized take within the LAP when making 
permitting decisions. Additional commenters asserted that the Service 
does not adequately enforce the Eagle Act. In response to all of those 
comments, we wish to clarify that, outside of its permitting programs, 
the Service is addressing unauthorized take of bald eagles and golden 
eagles through a variety of means. The Service's Office of Law 
Enforcement expends considerable time and resources protecting both 
species. Because golden eagles in particular are experiencing 
significant amounts of human caused mortality, they are receiving high 
levels of investigative effort throughout the western United States. 
These investigations have covered the unlawful killing and trafficking 
of eagles and their parts, electrocutions of eagles from electrical 
distribution infrastructure, intentional or incidental poisoning of 
eagles, eagle mortality due to wind turbine strikes, eagle nest 
destruction, and a host of other human activities that result in eagle 
deaths. Investigation and prosecution of these crimes can be very time 
intensive, with some investigations requiring many hundreds of hours to 
complete.
    Many of these investigations require thorough review of historical 
information on the activity causing the mortality, investigation of the 
responsible party's efforts to avoid the eagle deaths, and presentation 
of investigative results to the Department of Justice (DOJ) for 
potential prosecution. This is often accomplished through subpoenas, 
search warrants, field inspections (often in remote areas), evidence 
collection, interviews, and report writing. For activities involving 
the intentional killing and trafficking of eagles, the investigative 
techniques can also include the use of undercover operations to gain 
evidence and better document the extent of the unlawful activity. In 
short, the Service's Office of Law Enforcement places a high priority 
on protecting bald and golden eagles, and expends considerable effort 
on education, outreach, and investigations to fulfill this 
responsibility.
    This final rule establishes standards applicable to all 
compensatory mitigation in accordance with principles and standards set 
forth in Service and Departmental and Executive Branch policy. 
Compensatory mitigation is to be used to offset remaining impacts after 
the application of all practicable avoidance and minimization measures. 
Compensatory mitigation must 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. Compensatory mitigation must be based on 
the best available science and must use rigorous compliance and 
effectiveness monitoring and evaluation to make certain that mitigation 
measures achieve their intended outcomes or that necessary changes are 
implemented to achieve them.
    Compensatory mitigation must provide benefits beyond those that 
would otherwise have occurred through routine or required practices or 
actions, or obligations required through other legal authorities or 
contractual agreements. A compensatory mitigation measure is 
``additional'' when the benefits of the measure improve upon the 
baseline conditions of the impacted eagle species in a manner that is 
demonstrably new and would not have occurred without the required 
compensatory mitigation measure. Voluntary actions taken to benefit 
eagles in anticipation of and prior to issuance of an eagle take permit 
may be credited towards compensatory mitigation requirements. Such 
actions must meet all mitigation standards set forth in the rule for 
compensatory mitigation. Applicants must provide clear evidence that 
the voluntary action was undertaken to fulfill compensatory mitigation 
requirements under this rule. The Service will determine whether and 
how much to credit such actions. Potential applicants intending to take 
voluntary conservation actions prior to permit application are 
encouraged to seek technical assistance from the Service.
    Compensatory mitigation must be durable and, at a minimum, maintain 
its intended purpose for as long as the impacts of the authorized take 
persist. The Service will require that implementation assurances, 
including legal, contractual, and financial assurances, be in place 
when necessary to assure the development, maintenance, and long-term 
viability of the mitigation measure. Compensatory mitigation must also 
include mechanisms to account for and address uncertainty and risk of 
failure of a compensatory mitigation measure. This could be in the form 
of greater mitigation ratios, the establishment of buffers or reserve 
accounts, or other mechanisms.
    Compensatory mitigation may include conservation banking, in-lieu 
fee programs, and other third-party mitigation projects or 
arrangements. 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. Where compensatory mitigation is 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 will be 
required to provide compensatory mitigation to offset predicted take 
over each 5-year period. If reliable reported data demonstrate 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.
    The Service will develop guidance for different types of 
compensatory mitigation projects for eagles, for example power pole 
retrofits to reduce eagle electrocution. Guidance will include methods 
and standards for determining credits (i.e., how much of the type of 
mitigation is needed to offset one eagle), mitigation ratios based on 
uncertainty, temporal loss and related factors, durability assurance 
requirements, compliance and effectiveness monitoring requirements, and 
other important implementation considerations. When practical, we will 
involve stakeholders in the development of such guidance.

Additional Revisions

    These regulations include several minor revisions 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

[[Page 91506]]

be met with eagle parts and/or feathers from another source, such as 
the National Eagle Repository) is amended so that it applies to 
increased need for take for religious purposes. Historical tribal take 
for religious use requiring take of eagles from the wild that has been 
ongoing, but not authorized, generally does not need to be prioritized 
because it is part of the environmental baseline set in the 2009 FEA. 
However, increases in historical take levels would not be part of the 
current baseline. We also are removing 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. In addition, we are 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.
    Unauthorized eagle take is prohibited by law. The options available 
for addressing future eagle take differ from those for addressing past 
take. Future take may be addressed proactively through a nonpurposeful 
(incidental) take permit issued under the Eagle Act and the 50 CFR part 
22 permit regulations. If such a permit is sought by an applicant and 
issued by the Service, it will protect the permittee from criminal 
prosecution or civil law enforcement for any eagle take authorized by 
the permit.
    If enforcement action has been taken to address past eagle take by 
an applicant, then the Service will consider any pending or completed 
resolution of that enforcement when evaluating an application and 
determining whether to issue an eagle incidental take permit. The 
Service will do so in order to be consistent with the general 
responsibility criteria set out in 50 CFR part 13 for all permits 
(whether or not eagle permits) issued under 50 CFR Subchapter B. A 
permit can be issued without resolving unauthorized past eagle take; 
however, the applicant continues to be subject to an enforcement action 
at any time for unpermitted prior take of eagles. Depending on the 
circumstances of a past take, the U.S. Department of Justice or the 
Service's Office of Law Enforcement may determine that enforcement is 
warranted using appropriate enforcement authorities. The Service will 
take into consideration the nature, circumstances, extent, and gravity 
of the prohibited acts committed in the violation and with respect to 
the violator the degree of culpability and cooperation, history of 
noncompliance, levels of past take, and efforts to reduce take. The 
statute of limitations for criminal and civil enforcement actions is 
five years.
    These revised regulations include a provision at Sec.  22.26(f)(7) 
that requires the Service to determine, before issuing a permit, that 
issuance of the permit will not interfere with an ongoing civil or 
criminal action concerning unpermitted past eagle take at the project. 
One element of civil and criminal cases is establishing that take of 
eagles is not permitted, requiring coordination between the Service law 
enforcement and migratory bird programs early in an investigation. 
Later in the process, court judgments may include a sentencing or 
probation condition that an eagle take permit be sought, or where 
settlement negotiations have been successful, the settlement agreement 
often includes a requirement that a company apply for an eagle take 
permit. Without such a determination, issuance of a permit might in 
some cases disrupt the ongoing investigation, prosecution, or 
negotiation process.
    To recoup the cost of processing longer-term permits, which are 
generally complex due to the need to develop robust adaptive management 
measures, we will assess a $36,000 permit application processing fee 
for eagle incidental take permits of 5 years duration or longer. This 
fee is the same as the fee we currently require to process programmatic 
permits. A commercial applicant for an incidental take permit of a 
duration less than 5 years will 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. 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. The incidental take permit application processing fee for 
homeowners and other non-commercial entities remains $500, and the 
amendment fee for those permits is unchanged at $150.
    We will assess a user fee called an ``administration fee'' every 5 
years for long-term permits to cover the cost to the Service of 
conducting the 5-year evaluation and developing any appropriate 
modifications to the permit. The proposed rule would have implemented a 
$15,000 administration fee but, based on changes to the rule, and upon 
subsequent analysis, we have determined that an $8,000 administration 
fee more accurately accounts for costs the Service is likely to incur 
during a ``typical'' 5-year permit review. We will adjust the fee 
amount in future rulemakings if experience shows that $8,000 is either 
too high or too low to accurately account for costs.
    We are removing the provisions for transfer of a programmatic 
permit from a permittee to another entity that were codified at Sec.  
22.26(i). Those provisions were unnecessary because Sec.  13.25(b) 
already provides for transfer of Sec.  22.26 eagle incidental take 
permits. The Service is reviewing permit applications from, and 
continuing to provide technical assistance to, applicants with complex 
projects who are in the process of applying for eagle take permits. To 
prevent many of them from having to effectively restart the application 
process due to these revisions to the regulations, we are incorporating 
a 6-month ``grandfathering'' period wherein applicants (persons and 
entities who have already submitted applications) and project 
proponents who are in the process of developing permit applications can 
choose to apply (or re-apply) either under all the provisions of the 
2009 regulations or all the provisions of these final regulations.
    The 2013 Duration Rule established a definition of ``low-risk'' 
projects that was subsequently vacated by a federal district court 
decision (Shearwater v. Ashe, No. 5:14-cv-02830 LHK (N.D. Cal. Aug. 11, 
2015)). After subsequent consideration, we found this definition to be 
counter-productive. In the Duration Rule, the Service defined ``low-
risk'' 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 (or less than 1 eagle over a 30-year period). 
In retrospect, that definition would not have proved useful because it 
would have covered only those projects where take is essentially 
negligible, and, therefore, the project would likely not require a 
permit in the first place. We 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, despite seeking input from the public and 
considerable staff effort, we were unable to develop

[[Page 91507]]

a definition of ``low-risk'' that could be consistently applied 
throughout the United States while achieving our desired goals for a 
``low-risk'' 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 did not propose a revised definition for low-risk 
projects in the proposed rule. Instead, we again sought comment on how 
to define ``low-risk'' or ``low-impact'' take of eagles, and on other 
approaches for authorizing take, such as a general permit 
authorization. The proposed rule stated that while comments would be 
outside the scope of this rulemaking action, we would keep them on file 
for later consideration in a future rulemaking. Several commenters 
provided input on this topic, and we will retain those comments to help 
inform future guidance or rulemaking. We intend to continue the public 
process to further develop criteria and an approach that minimizes 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.

Eagle Nest Take Permits (50 CFR 22.27)

    Under the 2009 eagle nest take regulations (50 CFR 22.27), 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, these rule revisions 
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. For the same reasons 
as described above for Sec.  22.26 permits, a commercial applicant for 
a nest take permit for a single nest will 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 will increase from $150 to $500. For permits to 
take multiple nests, the fee is $5,000 versus $1,000 for programmatic 
permits, currently. For homeowners and other non-commercial entities, 
the nest take permit application processing fee and amendment fee will 
not change.
    These revised regulations also revise several definitions 
applicable to nest take permits to better comport with terms used in 
scientific literature. Nests that are not currently being used for 
reproductive purposes are defined as ``alternate nests,'' while nests 
that are being used are ``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. An 
``in-use nest'' is defined as ``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 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 are revising 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'' 
were not helpful for clarifying 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.
    The revised provision at Sec.  22.27(a)(1)(i) enables us to issue a 
permit to remove an in-use nest to prevent a rapidly developing safety 
emergency situation, instead of waiting until the emergency is exigent. 
Without this addition, 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.
    The 2009 regulations provide that the Service can issue a nest take 
permit for an inactive (``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 are revising this 
provision to also allow for removal of an in-use nest prior to egg-
laying in order to prevent the foreseeable functional hazard from 
coming to fruition. The revised regulatory language allows nest removal 
at an earlier stage that may provide eagles an opportunity to re-nest 
elsewhere while also preventing the nesting eagles from rendering the 
human-made structure inoperable.
    We are removing 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 retain consideration of whether alternate nest 
sites are available to the displaced eagles, but an affirmative finding 
is not a requirement for issuing a permit.
    The Service will consider whether other nests are available in the 
``nesting territory,'' rather than in the ``area nesting population.'' 
We defined ``area nesting population'' in 1982 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.'' 
In addition to the typo (i.e., ``resting'' instead of ``nesting''), the 
definition is problematic for 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

[[Page 91508]]

radius of the nest. We define ``nesting territory'' as ``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 replaces the current definition of 
``territory.'' The two definitions are functionally similar, but the 
new definition of ``nesting territory'' is more in line with 
terminology used in the biological community.
    Under the 2009 regulations, if a nest containing viable eggs or 
nestlings must be removed, transfer of the nestlings or eggs to a 
permitted rehabilitator or placement in a foster nest was required. 
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 for 
transfer of eggs and nestlings has sometimes meant that the Service 
could not legally issue a permit necessary to alleviate the safety 
emergency. To address this problem, we are adding 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 on a case-by-case basis in that scenario.
    As with the prioritization criteria in Sec.  22.26, these 
regulations amend the prioritization criteria for nest take permits to 
remove any priority for allocation of take to renewal of programmatic 
permits since that permit category is being removed. Also, the 
prioritization for Native American religious take is amended in the 
same manner as for Sec.  22.26 incidental take permits (see earlier 
discussion).
    These revised regulations adopt mitigation standards for taking 
eagles nests under Sec.  22.27 that are similar to those we are 
adopting 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 the 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 some new nests in areas 
of high eagle density. In those cases, the amount of compensatory 
mitigation may be relatively low. Data show 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)

    The regulations include minor revisions to the permit application 
processing fee table in 50 CFR 13.11. We are removing the column for 
Administration Fees because those fees apply only to eagle incidental 
take permits and not to any other type of Service permit listed in the 
table. The requirement for administration fees is instead incorporated 
into Sec.  22.26. The table at Sec.  13.11 also includes the updated 
fees for incidental take permits 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)

    Paragraph Sec.  22.11(c) is revised by replacing ``[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 (MBTA; 16 
U.S.C. 703-712) 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 MBTA, 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; Sept. 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 amending 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)

    The regulations include several revisions to the regulations for 
permits for take of inactive golden eagle nests for resource 
development and recovery operations. The purpose of these revisions is 
to incorporate terminology consistent with the Sec.  22.27 eagle nest 
take permit regulations. Changes to Sec.  22.25 in this rulemaking are 
limited to those necessary for consistency with Sec.  22.27, with a few 
additional minor revisions, as explained below.
    A new definition, ``alternate nest'' refers to a nest that is not 
currently being attended by eagles for breeding purposes. Under the 
2009 regulations, such a nest was an ``inactive nest,'' the definition 
for which is removed from the regulations. We are also 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

[[Page 91509]]

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 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 does not preclude the Service from issuing a permit, 
but such loss will be part of our consideration of whether the take is 
compatible with the preservation standard and what amount of mitigation 
is necessary.
    We add the phrase ``and monitoring'' to paragraph (b)(4) of the 
Sec.  22.25 permit regulations. We do, as a matter of course, require 
monitoring as a condition of these permits, so the regulation should be 
clear that we may require the permittee to monitor effects to eagles 
from the permitted activity and mitigation measures. Lastly, we replace 
the word ``feasible'' with ``practicable'' in reference to the 
mitigation that we will require, consistent with Sec.  22.26, Sec.  
22.27, and agency mitigation policy.

Response to Public Comments

    The following section contains the substantive public comments we 
received on the proposed regulation revisions and our responses that 
explain why we do or do not incorporate the changes suggested by each 
commenter into this final rule. Comments that pertain to the biological 
framework and eagle management objectives described in the Status 
Report and PEIS are not included below, and are instead addressed in 
Appendix A to the final PEIS. Also not included below are the many 
comments supporting various provisions of the rulemaking. We also 
received numerous comments recommending regulatory actions pertaining 
to permits for eagle depredation, eagle falconry, and eagle 
propagation. We do not respond to those comments here because they are 
outside the scope of this rulemaking, but we will consider them if and 
when we initiate a rulemaking process for those permit types.

Rulemaking Process

    Comment: Because the proposed rule will have cumulative effects on 
endangered and threatened species that share habitats with eagles, the 
Service must engage in section 7 consultation on the entire rule. The 
Service's assertion that the issuance of an eagle act permit is not the 
``direct cause of habitat degradation,'' and hence such degradation 
need not be addressed as part of the NEPA process or in section 7 
consultation, is legally unsupportable. Since the Eagle Act 
categorically prohibits the ``take'' of eagles without the Service's 
permission, a Service authorization of eagle takes that could not 
otherwise lawfully occur surely is the legal ``cause'' of not only the 
deaths of eagles and other wildlife from turbine operation, but also 
the associated habitat degradation due to road and associated 
infrastructure construction.
    Response: Section 7 of the ESA requires Federal agencies to consult 
to ``insure that any action authorized, funded, or carried out'' by 
them ``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). 
Intra-Service consultations and conferences consider the effects of the 
Service's actions on listed, proposed, and candidate species. Our 
proposed action of issuing regulations regarding take of non-ESA-listed 
eagles does not authorize, fund, or carry out any activity that may 
affect--directly or indirectly--any ESA-listed species or their 
critical habitat. See, e.g., Sierra Club v. Bureau of Land Mgmt., 786 
F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to 
authorize, fund or carry out project activities by third parties. The 
BGEPA empowers us to authorize take of bald and golden eagles. Thus, we 
have determined that these revisions have no effect on any listed, 
proposed, or candidate species or their critical habitat. As a result, 
section 7 consultation is not required on this proposed action. As 
appropriate, we will conduct project-specific section 7 consultations 
in the future if our proposed act of issuing a permit for take of 
eagles may, in and of itself, affect ESA-listed species or critical 
habitat. Regarding NEPA, we have analyzed the environmental effects of 
this rulemaking and our eagle permit framework in general in the PEIS 
associated with this rulemaking.
    Comment: The Service should have extended or should re-open the 
public comment period prior to finalization of the regulations to 
ensure a fully vetted and transparent process as required by NEPA. The 
60-day comment period was unreasonably short given the importance of 
the issue and the magnitude of information provided in the documents.
    Response: NEPA does not address the public comment periods required 
for rulemaking. Whether a comment period is long enough to allow for 
sufficient opportunity for public input is governed by the 
Administrative Procedure Act (APA; 5 U.S.C. subchapter II). However, 
the APA also does not require specific durations for public comment 
periods or establish a minimum time period for public comment; rather 
it provides that ``the agency shall give interested persons an 
opportunity to participate in the rule making through submission of 
written data, views, or arguments with or without opportunity for oral 
presentation'' (5 U.S.C. 553(c)). For example, in Fleming Cos. v. U.S. 
Dept. of Agric., 322 F. Supp. 2d 744, 764 (E.D. Tex. 2004), the court 
held that a 30-day notice and comment period is sufficient. We believe 
that 60 days was sufficient to allow for public input by interested 
parties on these regulations, and the quantity and quality of the 
substantive comments the Service received bear this out.
    Comment: Failure to meaningfully consult with Indian tribes on 
issues affecting their interests can affect the tribes' ability to 
effectively comment on policy changes. Consultation is still needed to 
provide the tribes with particularized information about how the rule 
revisions would affect them and the eagles around their lands. Due to 
the failure on the part of the Service to consult with tribes prior to 
proposing the regulations, issuance of the final rule should be delayed 
until government-to-government consultation is conducted and the tribes 
have an opportunity to comment following consultation.
    Response: In September of 2013, the Service sent all federally 
recognized tribes throughout the United States a letter inviting them 
to consult with the Service on development of these regulations. The 
Service then held meetings with all tribes that requested such 
meetings. We also held a number of regional informational webinars for 
tribes. In response to tribal comments on the proposed regulations 
asking for consultation, we reached out to each tribe that asked and 
met with them to gather their input and hear their concerns. Individual 
tribes will also have an opportunity to consult on individual permitted 
projects that may affect tribal interests.
    Comment: We ask that outstanding items that the Service is unable 
to address in this revision be acknowledged with a firm commitment by 
the Service to address the problematic elements of the program under a 
clearly defined schedule.
    Response: There are some ``outstanding items'' that the Service is 
likely to address through future guidance and, where necessary and

[[Page 91510]]

appropriate, future rulemakings. Issuing a schedule for when most of 
these items will be addressed would be an exercise in futility for a 
number of reasons, including the Service's inability to predict the 
size of its' future budget and work force, what the priorities under a 
new Administration might be, and what new information the Service will 
have that may bear on how we would prioritize the outstanding items to 
be addressed.

Preservation Standard

    Comment: The Service should adopt a stepwise approach to analyzing 
preservation under the modified preservation standard. A stepwise 
approach would first look at the LAP. If the LAP is healthy, then a 
project should be deemed to have satisfied the preservation standard 
and not be required to undertake compensatory mitigation. If the LAP is 
stressed or undeterminable, then a project could be required to 
consider populations at the EMU and/or throughout the geographic range 
of the species, in that order, to determine if and where mitigation is 
required. A stepwise approach would help ensure a rational relationship 
between a project's impacts, if any and the required mitigation to 
offset for those impacts.
    Response: Eagles move over much larger areas than LAPs, and simply 
looking at the effects of a project at the local area scale would 
ignore impacts to migratory and dispersing eagles from outside the LAP 
area. Moreover, it is not feasible to collect eagle population data at 
the scale of the local population everywhere permits are sought, 
meaning the kind of analysis described here would be infeasible over 
much of the United States. Finally, shifting the focus of compensatory 
mitigation to the LAP will greatly complicate and artificially 
constrain implementation of mitigation efforts. Given the current 
challenges with implementing effective mitigation, we will not further 
constrain options at this time.
    Comment: The Service should apply the Eagle Act's preservation 
standard to only the national and EMU levels for each eagle species. As 
long as the national and EMU populations stay stable or increase, which 
they currently are in the absence of [programmatic] eagle permits being 
issued, the Service's goals for eagles have been met and there should 
be no need to look at a smaller geographical area.
    Response: The Service's goals would not be met by allowing local 
eagle populations to significantly decline or disappear. There is no 
reason to believe that Congress's intent in enacting the Eagle Act and 
including the preservation standard was to preserve bald eagles only in 
pockets of their range. Moreover, current data, as presented in the 
Status Report, indicate that golden eagle populations at the national 
and EMU levels are likely not currently stable or increasing.
    Comment: Before proceeding with a take permit process using EMUs, 
the Service should strengthen the biological foundation of eagle 
demographic organization as a basis for assessing wind energy impacts, 
or take another approach altogether.
    Response: There is already an eagle take permitting process in 
place that has used both the LAP and EMU-based analyses, as described 
in the final environmental assessment conducted for that rulemaking 
action and the 2013 Eagle Conservation Plan Guidance. The proposal to 
shift to use of Flyways rather than Bird Conservation Regions (BCRs) 
for EMUs (background for which is provided in the Status Report) is 
based on our experience implementing the 2009 eagle regulations. Data 
collected under incidental take permits will allow the Service and 
partners to better assess the performance of the Flyway EMUs in 
capturing connectivity of eagle-use areas from a risk management 
perspective, or to determine if another configuration would be 
preferable.
    Comment: We are concerned that the preservation standard will 
result in the mere persistence of the two species without accounting 
for demographic sustainability. The mere presence of birds alone may 
not be ecologically sustainable unless there is a demographic 
preservation standard, the lack of which will potentially create 
population sinks. It is not apparent within the population models how 
the cumulative take of eagles affects their demographic preservation. 
The definition of ``persist'' is ``stable with 2009 as the baseline.'' 
We think there is room for misinterpretation of this definition. 
Persistence is related to local populations, and, thus, it may be 
difficult to link persistence to the 2009 baseline, given that this 
baseline was calculated at a different spatial scale (i.e., not at the 
level of local populations). We request further assessment or a better 
explanation that clarifies how this concept would apply at local 
populations.
    Response: The Service's population objective is to maintain stable 
or increasing populations of both species of eagle at the EMU-scale, 
while at the same time ensuring the persistence of local populations. 
It is the EMU component of the objective that has been analyzed 
demographically and determined to be consistent with maintaining viable 
populations; we show in the Status Report that take at the maximum 
level allowed at the LAP-scale will have negative effects on local 
populations, though our analysis suggests local populations should 
still persist. Taken together, the two-tiered population objective 
means that across an EMU, we might well have areas where eagle take is 
high and local populations decline to lower equilibriums, whereas 
elsewhere in the EMU eagle populations are not affected substantially 
by authorized take to the same degree (or are increasing as a result of 
the application of compensatory mitigation), such that across the whole 
of the EMU the population, on average, is stable or increasing.
    Comment: The preservation standard proposed for two species not 
listed under the ESA generally exceeds federal ESA standards. There was 
an expectation that the Service would revise the preservation standard 
used for the two eagles as the standard provides greater protection 
than is required and contributes to a number of management actions 
(calibrating population estimates, estimating take, monitoring efforts) 
that detract from management needs related to numerous other species 
for which there are legitimate and often urgent conservation concerns.
    Response: The Service is charged with upholding the Eagle Act by 
protecting and conserving the two species it covers. In the case of 
bald eagles, we recognize that there are many other species 
experiencing significantly greater threats to their populations. 
However, the Eagle Act requires that we allocate resources to protect 
bald eagles consistent with congressional purpose stated in the 
enacting clause of the 1940 Eagle Protection Act: ``by tradition and 
custom during the life of this Nation, the bald eagle is no longer a 
mere bird of biological interest but a symbol of the American ideals of 
freedom.'' And, of course, bald eagles, as well as golden eagles, have 
special cultural significance to Native American tribes.
    Golden eagle populations appear to be well below what their 
carrying capacity would be were it not for high levels of anthropogenic 
mortality. We acknowledge that attempting to maintain current numbers 
of golden eagles is in part a policy choice: The Service could have 
chosen any reasonable interpretation of Congressional intent, as long 
as it was consistent with the statutory language and the legislative 
history behind it. For

[[Page 91511]]

example, we could have argued that the preservation standard allows for 
golden eagle populations to further decline to some new lower level and 
then preserve golden eagles at that lower population level. We also 
could have argued that recovery to a much higher population is 
warranted. However, the policy choice we made is based on what we 
consider, in our best scientific judgment, to be the most appropriate 
interpretation of the preservation standard and the overall statutory 
mandate to conserve and protect both eagle species, which factors in 
science, legislative history, and the value of golden eagles 
culturally, symbolically, and ecologically. We considered all these 
factors in defining ``preservation'' under the Eagle Act so as to 
protect the golden eagle populations that we have. In short, we believe 
that is our responsibility and our mandate.
    This legislative mandate to protect eagles under the Eagle Act is 
separate and apart from our mandate to conserve, protect, and recover 
species under the Endangered Species Act. The purposes and policy goals 
of both statutes overlap to some extent, but are also different in many 
ways. As such, it is not appropriate to create parallel species 
conservation, protection, and recovery standards under each statute or 
to establish an equivalent standard under the Eagle Act that provides 
less protection than the Endangered Species Act. Instead, our 
regulations under each statute protect covered species in different 
ways, consistent with legislative intent.
    Comment: The proposed rule inaccurately cites the current 
definition of the preservation standard as ``consistent with the goal 
of maintaining stable or increasing breeding populations'' (81 FR 
27934, May 6, 2016, p. 27937). But the 2009 rule expressly rejected use 
of the word ``maintaining,'' which was in the proposed rule, explaining 
that it could be misapplied to constrain any authorization of take 
because any take of a bald or golden eagle by some degree results in a 
population decrease, even if short-term and inconsequential for the 
long-term preservation of the species. Thus, the word ``maintaining'' 
would render the Service unable to authorize any take (74 FR 46836, 
September 11, 2009, pp. 74 FR 46838-46839). Now, the Service proposes 
to revive the very same word it found would improperly restrict 
issuance of take permits in 2009.
    Response: We appreciate this comment, which is accurate. The 
wording in the 2009 regulations did not contain the word 
``maintaining,'' and we are correcting it with reference to the 2009 
regulations While we concede that ``maintaining'' could be 
misinterpreted as noted in the preamble to 2009 regulations, we have 
built enough of a record by now that our intent should be clear: That 
the goal is to maintain populations over the long term. For the 
definition we are codifying in this final rule, we are retaining the 
word ``maintaining'' because it serves a constructive role in relating 
the two goals of the revised definition together.
    Comment: The addition of the term ``persistence'' to the 
preservation standard is confusing, as it adds another layer of 
definitions, with the Service stating that ``persist'' is defined as 
``stable with 2009 as a baseline.'' At worst, this seems to decrease 
the current standard and at best, it adds unneeded complexity and 
confusion. We recommend that the preservation standard keep ``stable or 
increasing'' as the standard for both EMUs and LAPs, by deleting 
``persistence of'' in the proposed definition. The revised preservation 
standard would read, ``consistent with the goals of maintaining stable 
or increasing breeding populations in all eagle management units and 
local populations throughout the geographic range of both species.''
    Response: We have clarified in the preamble discussion of the 
preservation standard that we intend the 2009 baseline to apply to 
regional EMU populations, but not local populations. For one, the LAP 
analysis requirement helps us ensure the persistence of local 
populations, but does not measure a fixed local population. The LAP 
analysis calculates the authorized take within the area of an activity 
that may take eagles, and uses the average density of eagles in the EMU 
as an estimate of the number of eagles within a certain distance of the 
project. Therefore, there are no specific local populations that we 
could track as increasing or decreasing, even if we had the capacity to 
obtain data at that fine a scale, which we do not. Because there would 
be no means of measuring whether theoretically discrete local 
populations were stable, decreasing, or increasing, we are not adopting 
the commenter's suggested modification of the standard. Retaining 
``persistence'' in the definition helps to clarify our intent in that 
regard.
    Comment: The inclusion of a management goal for populations on a 
more localized scale is appropriate. However, the Service should use 
consistent terms when referring to this scale by using the term local 
area population (LAP) in the preservation standard: ``. . . in all 
eagle management units and persistence of LAPs throughout the 
geographic range of both species.''
    Response: We appreciate the intent behind this recommendation, but 
a ``LAP'' is not a discrete population, but rather a calculation of the 
number of eagles within the area of a given project or activity, 
specifically, the number of eagles estimated to be within the area 
bounded by the natal dispersal distance for the respective species. See 
our response to the previous comment for more explanation.
    Comment: Despite extensive discussion of management objectives in 
the preamble to the proposed rule, it is unclear how the Service 
intends to establish its take ``baseline,'' from which permissible 
future take in any given EMU will be calculated. The Service fails to 
provide a defensible rationale for establishing a take baseline based 
on eagle populations as they existed in 2009, or any other point in 
history.
    Response: The approach used by the Service to establish the 
baseline and subsequent take limits is covered extensively in the first 
35 pages of the Status Report and in the chapters of the programmatic 
environmental impact statement (PEIS) on bald and golden eagles. Please 
refer to these documents.
    With respect to the assertion that the Service failed to provide a 
rationale for its population objective, we disagree and point out that 
the current management objective is directly derived from and 
consistent with the determination made with the adoption of the initial 
nonpurposeful take permit regulations in 2009. We do not doubt that 
continental populations of both species were at times larger or smaller 
than they are today, but that is not a compelling reason to set a 
different and likely unattainable population objective. The Status 
Report indicates there is a high probability that meeting the 
objectives the Service proposed for both species will ensure healthy 
populations at the EMU level for the foreseeable future. Moreover, the 
commitment to collect and consider new population information regularly 
as part of the adaptive management process ensures that there will be 
opportunities to adjust the objectives, take rates, and take limits on 
a recurring basis.
    Comment: In the proposed rule, there is no consideration of age and 
sex of eagles taken under incidental take permits, nor is there regard 
for the time of year when the impacts will occur or of the status of 
the population affected. There is no consideration of carrying capacity 
or of how the loss of specific individuals might have affected other 
eagles. The proposed rule largely

[[Page 91512]]

ignores the context in which the impacts of incidental take will occur.
    Response: The Service agrees with this commenter that the 
population status, age, and (in some circumstances) the sex of eagles 
killed matters in terms of the scale of population impact; however, we 
disagree that we have ignored these factors in setting up the 
permitting program. With regard to spatial variation in status, the 
Service examined existing demographic data for regional differences in 
vital rates, and established EMUs and population estimates for EMUs 
accordingly. With regard to other factors, how or whether the 
probability of take under various activities varies according to eagle 
age and sex has not been quantified broadly for either species of 
eagle. Thus, the Service's models assume that take under incidental 
take permits will be in proportion to the abundance of exposed age 
classes and sexes. The Service has established a policy to determine 
the age and sex of eagles taken under permits, and over time as part of 
the adaptive management process, and as this information accrues we 
will evaluate whether risk is disproportionate for any of these groups 
across the various activities that incidentally take eagles. The Eagle 
Conservation Plan Guidance (ECPG; U. S. Fish and Wildlife Service 2013) 
identifies age, in particular, as a factor the Service suspects 
influences collision risk at wind facilities. The implications of the 
data collected on the age and sex of eagles taken under permits will be 
considered by the Service in future updates to the Status Report, and, 
if warranted, these assessments could lead to other changes in the 
permit program.
    Comment: Proposed Sec.  22.3 articulates the preservation standard 
as ``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 [eagle] 
species.'' It is unclear what ``persistence of local populations'' 
means, and the basis for including local management in a standard 
intended to manage the take of eagles at a national level is puzzling. 
At a minimum, the preservation standard articulates a management scale 
that is internally contradictory.
    Response: With respect to the relevancy of the LAP scale of eagle 
management, recent data from satellite tracking studies show that while 
both bald and golden eagles range widely, there is high philopatry (the 
tendency of an organism to stay in or return to a particular area) to 
natal, wintering, and migration stopover areas. Thus, local impacts can 
have far-reaching effects on eagle populations. Local populations of 
eagles also are of great cultural and social importance. The Service 
received many comments from states, tribes, local governments, and 
environmental organizations in support of including the persistence of 
local eagle populations in the management objective for eagles. The 
Service disagrees that including this scale of management is 
contradictory. The LAP population size estimate is based on the eagle 
densities estimates in the surrounding region, and those density 
estimates are biologically based and derived from actual eagle count 
data at the finest scale available. As to the LAP area, it is based on 
the natal dispersal distance of each eagle species, and as such 
represents the most applicable area over which the effect of an 
individual incidental take permit should be measured. The Service 
believes that preservation of local eagle populations accomplishes both 
important biological and cultural objectives, and that the EMU-scale 
analysis alone is not sufficient to evaluate and account for local and 
cumulative effects of an incidental eagle take permit.
    Comment: Congress intended the Secretary to treat take authorized 
for scientific and religious purposes differently than take authorized 
for the protection of wildlife or agricultural or ``other'' purposes. 
Specifically, while Congress expressly conditioned the Secretary's 
ability to authorize scientific/religious take to take that is 
``compatible with the preservation of the species,'' Congress's 
subsequent text imposes no similar condition on the Secretary's ability 
to authorize take for the protection of wildlife, agricultural, or 
``other'' interests, except that such take is ``necessary'' to protect 
the interest at issue. Accordingly, Congress did not intend to limit 
the Secretary's ability to issue permits for non-scientific, non-
religious take only to situations where doing so would be ``compatible 
with the preservation of the species.'' This conclusion is supported by 
the legislative history of the Eagle Act, which nowhere suggests that 
each take authorized for agricultural or ``other'' interests should be 
conditioned on compatibility with the preservation of the species. To 
the contrary, one of the express purposes of amending the Eagle Act in 
1960 was to provide the Secretary with the authority necessary to issue 
eagle take permits to accommodate overriding local or commercial 
interests (see, e.g., Senate Report No. 87-1986, at 85,007-008, 85,011, 
85,013 (1960) (explaining Congressional intent to carve out an 
exception from the preservation standard where necessary to protect 
important commercial interests); House Report No. 87-1450, at 72,007, 
72,010-011 (same)). Because the Service proposes to condition all eagle 
take on the preservation standard that Congress intended to apply only 
to scientific and religious take, the proposal is inconsistent with law 
and vulnerable under the APA.
    Response: The legislative history does not support the commenter's 
position. The referenced Senate Report states that ``it is expected 
that thus the conservation purposes of the bill will be preserved, 
while at the same time any potential economic hardship to limited areas 
can be obviated.'' Although the Committee was referring to the proposed 
new authority to allow a state Governor to request a depredation 
control order, this language supports interpreting the preservation 
standard to apply to the whole of 16 U.S.C. 668a, or at least to a 
clause other than the religious and scientific or exhibition purposes 
clause. The testimony also refers to both religious take and control to 
protect agricultural interests. In neither context does the testimony 
reference the preservation standard as limiting that authorization, and 
as such it provides no indication Congress intended that the two 
exceptions be treated differently. As noted by the commenter, the House 
Report is similar.
    The crux of the issue is that the statutory language authorizes the 
Secretary to permit the take of eagles for the protection of ``other 
interests in any particular locality''; it does not provide a blanket 
exception to the take prohibition or the Eagle Act's civil or criminal 
penalties for those interests. This means the Secretary has discretion 
to apply reasonable conditions to that authorization. Thus, even if the 
commenter were correct that the preservation standard does not apply on 
the face of the statute, the Secretary may place restrictions on take 
necessary to protect the species consistent with the purposes of the 
statute (which references a preservation standard in at least some 
contexts).
    Comment: The Service's population management objectives should be 
focused on the continued growth of all eagle populations in every 
extent of their current and historical geographic ranges, and any 
management strategy should support this tenet or be amended to meet 
that objective.
    Comment: The preservation standard should be re-phrased to make the 
goal of this permitting program to increase eagle populations. The 
Service should clarify that the relatively arbitrary 2009

[[Page 91513]]

baseline represents a minimum ``floor'' for population management. This 
floor does not represent the Service's aspirational goal but rather a 
threshold that will trigger additional action should populations fall 
below it. To this end, we recommend that the Service rephrase the 
preservation standard under 50 CFR 22.3 as follows: ``Consistent with 
the goals of increasing breeding populations, or at a minimum maintain 
stable breeding populations.''
    Response: We are confident that the management approach we are 
adopting will allow bald eagle populations to continue to grow for some 
time in most EMUs. As we describe in the Status Report, we expect bald 
eagle numbers to eventually stabilize at approximately 228,000 eagles 
by about 2030. We believe that maintaining current numbers of golden 
eagles is a worthy and achievable goal for the near term. It is our 
hope that our management approach may also provide for eventual, modest 
growth in golden eagle populations to better approximate what carrying 
capacity would be in the absence of high levels of human-caused sources 
of mortality. The 1.2 to 1 compensatory mitigation ratio and the 
reduction of unauthorized take as it comes under the permit 
requirements to avoid and minimize impacts to eagles are the primary 
regulatory mechanisms by which these regulations could provide that 
outcome in the long term.
    As the second commenter states, the 2009 baseline does indeed 
represent a minimum ``floor'' for population management. It is not the 
Service's aspirational goal. It is a threshold below which our 
management goal for eagles would not be met. With regard to the 
specific recommendation that the standard should read ``consistent with 
the goals of increasing breeding populations, or at a minimum maintain 
stable breeding populations . . . ,'' we do not agree that it would be 
good public policy to stipulate a goal of increasing a species' 
population size without also being specific as to why, by how much, and 
where, all factors for which the Service lacks any specific objective 
criteria. The Status Report indicates there is a high probability that 
meeting the objectives the Service proposed for both species will 
ensure healthy populations at the EMU level for the foreseeable future. 
As noted above, we believe bald eagle populations will continue to 
increase despite some additional authorized take. At present, the 
Service has not been presented with evidence that suggests stable 
populations of golden eagles would not satisfy both reasonable 
biological and societal needs.
    Comment: The Service proposes to add the clause ``and the 
persistence of local populations, throughout the geographic range of 
both species'' to the definition of the preservation standard. This 
contradicts and undermines the assumptions of the Service's biological 
opinions issued in support of habitat conservation plans (HCPs) and ESA 
incidental take permits that cover golden eagles. In approving those 
HCPs, the Service issued multiple biological opinions concluding that 
local populations of golden eagles were not critical for the long-term 
survival of the species.
    Response: The ESA and the Eagle Act have different conservation 
standards and purposes. While the ESA has as its bottom line that 
permitted take must not more than negligibly contribute to the 
extirpation of a species, the Service interprets the Eagle Act's 
preservation standard, even prior to the amendments to our regulations 
being made by this final rule, as intended to maintain sustainable 
population levels throughout the range of each species. We note that at 
the time that the HCPs and ESA take permits covering golden eagles were 
developed, the permits conferred no authorization to take golden eagles 
under the Eagle Act, but rather included statements that the Service 
would exercise its enforcement discretion so long as the permittees 
remained in compliance with the incidental take permits' terms and 
conditions specific to eagles. Since then, because of revisions we made 
to our regulations in 2008, ESA incidental take permits that cover 
eagles, if conditioned in accordance with Eagle Act standards, also 
convey take authorization under the Eagle Act. In that regulation, we 
stated the following with respect to existing incidental take permits 
that included golden eagles as a covered species: ``The statutory and 
regulatory criteria for issuing those ESA authorizations included 
minimization, mitigation, or other conservation measures that also 
satisfied the statutory mandate under [the] Eagle Act that authorized 
take must be compatible with the preservation of the bald or golden 
eagle.'' 73 FR 29,075 (May 20, 2008). This means the existing ESA 
golden eagle incidental take permits are ``grandfathered'' by the 2008 
regulation revision and as such are not contradicted or undermined by 
these final regulations.

Avoidance and Minimization

    Comment: The proposed removal of the ``unavoidable standard'' and 
replacement with a standard of practicability is too lenient and leaves 
unacceptable room for subjective interpretation.
    Response: The Service views the requirement that programmatic 
permittees reduce take to the point where any take that occurs is 
completely unavoidable as just as subjective in practice as a standard 
requiring reduction of take to the maximum degree practicable. In 
addition, the practicability standard is clearer, more reasonable, and 
realistic.
    Comment: The Service should provide more details regarding how the 
various considerations in the definition of ``practicable'' will be 
accounted for, weighted, and implemented in an objective manner.
    Response: The Service's definition of ``practicable'' in this rule 
mirrors the definition of that term in Service mitigation policy, as 
well as other federal agency mitigation policies and regulations. The 
Service also intends to implement the consideration of practicability 
with regard to mitigation measures in a manner consistent with these 
mitigation policies and regulations. The consideration of what is 
practicable is complex and context-dependent and is described in more 
detail in the preamble to this rulemaking above. Further details about 
how practicable considerations are implemented may be detailed in 
future guidance.
    Comment: Under the proposed rule, 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. The Service should not impose such measures on projects 
unless outlined in the permit conditions, or if take has exceeded 
anticipated levels. Instead, the Service should include a ``No 
Surprises'' concept in the final rule that would protect permittees 
from unforeseen circumstances beyond a permittee's control.
    Response: We modified the language covering 5-year reviews for this 
final rule such that additional conservation measures to be implemented 
based on the review will be limited to those described in the adaptive 
management plan for the permit, unless the take exceeds the authorized 
take levels or the permittee is otherwise out of compliance with the 
permit conditions. The final rule also includes the following language: 
``However, with consent of the permittee, the Service may make 
additional changes to a permit, including additional or modified 
appropriate and practicable avoidance and/or minimization measures 
shown to be effective in

[[Page 91514]]

reducing risk to eagles'' (50 CFR 22.26(c)(7)(iv)(D)).
    Comment: It is inappropriate to consider cost in the definition of 
``practicable.'' The Service has the legal authority to require 
permittees who take eagles to comply with the best available 
scientifically defensible measures to limit take regardless of cost.
    Response: The previous definition of practicable included 
considering cost, as do most definitions of the term in federal policy. 
If an applicant cannot afford a mitigation measure, or if the cost of a 
mitigation measure renders a commercial project financially infeasible, 
then the mitigation measure is not capable of being done by that 
applicant, and is not practicable. However, the burden of proof is on 
the applicant to demonstrate a mitigation measure is not practicable.
    Comment: The Service proposes to revise the definition of the term 
``practicable.'' However, the new definition seems to provide ample 
room for debate and interpretation with project proponents. The Service 
should define mechanisms to ensure that projects meet this definition 
and that proponents truly are avoiding take to the greatest extent 
practicable.
    Response: We hope to develop future guidance to ensure a 
consistent, objective approach is taken when evaluating the 
practicability of mitigation measures. In any case, the previous 
definition of the term practicable has already provided plenty of room 
for debate and interpretation. We do not expect our new definition to 
change that dynamic and that was not our intent.
    Comment: The Service's proposed definition of practicable is 
inconsistent with the Service's obligation and authority to permit 
eagle take only when it is ``compatible with the preservation of the 
bald eagle or the golden eagle.''
    Response: Both standards apply. If there are no practicable 
measures or compensatory mitigation actions that a project proponent 
can undertake to ensure compatibility with the preservation of eagles, 
the Service will not issue an incidental eagle take permit.
    Comment: The Service should add ``project economics and location'' 
to the definition of ``practicable'' at proposed 50 CFR 22.3 to 
harmonize the language of the regulations with the intended purpose to 
establish a workable ``practicability'' standard.
    Response: We do not agree that the addition of ``project economics 
and location'' is appropriate. Project economics implies that permits 
are always issued for commercial activities, but many eagle incidental 
take permits are issued to homeowners and government agencies. The 
addition of location is not appropriate because whether a project can 
be sited elsewhere may be part of the consideration of what is 
practicable.
    Comment: Courts have noted that the Service's definition of 
practicable ``looks to whether the mitigation is rationally related to 
the level of take under the plan.'' Key language from the existing 
regulations recognized this rational relationship requirement: 
``Practicable means capable of being done after taking into 
consideration, relative to the magnitude of the impacts to eagles, the 
following three things: The cost of remedy compared to proponent 
resources; existing technology; and logistics in light of overall 
project purposes.'' The Service should ensure that this rational 
relationship requirement carries over into the new definition of 
practicable.
    Response: We agree that the determination of what is practicable 
must include consideration of the magnitude of the impacts of the 
activity on eagles. The regulations capture this consideration at 50 
CFR 22.26(e)(5) addressing the factors the Service must consider in 
determining whether to issue a permit, which reads: ``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.''
    Comment: In the final rule, the Service should provide a more 
detailed description of elements of an adaptive management program 
suitable for protection of eagles, to include: Details on the process 
for development of the plan; opportunities for regulated entities to 
participate in discussions about adding or removing mitigation 
measures; mitigation measures that the Service identifies as suitable 
for the objective of reduced eagle disturbance or mortality; and at 5-
year reviews, the process for determining which mitigation measures 
will be included for a subsequent 5-year period.
    Response: The elements cited by the commenter as needing more 
detailed description (e.g., suitable mitigation measures, the process 
for determining when mitigation measures will be applied) will vary 
significantly depending on the type of activity that is being permitted 
and how it affects eagles. For example, mitigation measures and the 
trigger points for implementing them are likely to be very different 
for mining operations versus wind energy facilities. The ECPG contains 
a detailed description of the process the Service is using for adaptive 
management under incidental take permits at wind facilities, and we 
refer this commenter to that document for an example of how adaptive 
management will be implemented under permits for wind energy 
facilities.
    Comment: The Service has apparently not heeded any of the elements 
of the precautionary principle or the advice of the National Research 
Council when making decisions about rare or precious resources in the 
face of high uncertainty.
    Response: The entire eagle incidental take program has been built 
around explicitly accounting for uncertainty and then being clear about 
how that uncertainty is addressed in decisions. Adaptive management is 
a process of adaptive learning, whereby: (1) Predictions are made 
regarding anticipated effects of an activity; (2) data regarding the 
outcomes of the activity are collected; (3) the predictions are updated 
to reflect the actual outcomes of the activity; and (4) the updated 
predictions are used to change the activity, either in the future at 
the same site or at other places where the same activity is being 
contemplated. The Service has described its adaptive management 
framework for eagle incidental take permits in the ECPG (Appendix A), 
and in the preamble to this final rule. The overall framework is 
intended to account for, and over time to reduce, uncertainty in the 
effects of wind facility siting, design, and operations on eagles. More 
broadly than for just wind energy, the adaptive management process is 
also intended to address uncertainty in compensatory mitigation and the 
effects of established take rates on eagles. This uncertainty is 
reduced over time by using information collect on the actual outcomes 
of the activity to update the predictive models used initially to 
estimate those effects; over time, the accuracy and precision of the 
predictive models is improved through these updates. We describe how 
the risk posed by uncertainty is addressed in the response to other 
comments, but we reiterate here that in all cases the Service has 
adopted approaches that are protective of eagles.
    Comment: Permittees should also be required to conduct research and 
analysis to test methods to reduce lethal take during their permit 
life. There should be an expectation that all projects will be required 
to reduce their lethal takes over time.
    Response: The adaptive management framework outlined by the Service 
includes a requirement that permittees monitor eagle take and, on a 
case-by-case basis, other factors associated with

[[Page 91515]]

that take under their permits. The Service will use this information as 
part of the adaptive management process outlined in the ECPG to 
determine or add to existing knowledge of factors associated with eagle 
mortality under different activities and to evaluate the effectiveness 
of different avoidance and minimization measures. Through monitoring, 
5-year reviews, and the adaptive management process, our goal is to 
reduce take over time.
    Comment: A coordinated research program should be instituted to 
develop new and effective mitigation measures for wind energy 
facilities.
    Response: We agree additional research would benefit eagle 
conservation and the Service's permitting program. The permit program 
is designed to collect relevant data that can be used to evaluate the 
effectiveness of minimization, avoidance, and mitigation measures. This 
adaptive management approach allows for the incorporation of new 
information and practices over time. This approach is described in 
detail for eagle take permits for wind facilities in the ECPG.
    Comment: The Service should retain the requirement for applying 
advance conservation measures (ACPs) to mitigate eagle take. 
Experimental ACPs are appropriate where established ACPs are not 
available.
    Response: The Service eliminated ACPs from the regulations due to 
confusion about the standards by which ACPs were to be developed and 
what it means to reduce take to the point where it is unavoidable. We 
believe the new language is more consistent with Service policy and is 
clearer. Applicants must still implement all practicable avoidance and 
minimization strategies for their activities, and, conditioned on terms 
and conditions set in the initial permit, testing of experimental 
measures to reduce eagle take as, for example, described for wind 
energy facilities in the ECPG as part of the adaptive management 
process.
    Comment: Application of minimization strategies should be on a 
project-by-project basis to determine whether the measure is 
practicable for that project.
    Response: All practicable avoidance and minimization measures 
demonstrated to reduce take levels will be required. There are many 
considerations in determining whether mitigation measures are 
practicable for a particular project, including the magnitude of the 
impact to eagles. For example, if a project poses a relatively low risk 
of eagle take, imposing expensive monitoring and curtailment measures 
is not commensurate with the risk, whereas this strategy may be 
appropriate at a high risk site.

Duration and 5-Year Reviews

    Comment: The proposed change from 5-year permits to 30-year permits 
has the potential to decrease golden eagle population numbers in the 
Southwest, making it more difficult for tribes who rely on the 
ceremonial and religious take of golden eagles (as they have for 
centuries), to secure their own permits for take under the Eagle Act. 
Even with the prioritization given to tribal take permits, a tribe's 
ability to engage in longstanding religious and traditional take of 
golden eagles may nevertheless be constrained if golden eagles are so 
impacted by wind energy on a local or regional basis as to become 
unavailable for this purpose.
    Response: The regulations are designed not only to protect eagles 
but, in the case of golden eagles, to improve their condition. The 
management approach we are adopting through this rulemaking is risk-
averse with respect to estimating impacts on eagles. Population sizes, 
sustainable take rates, and, for wind facility permits, eagle fatality 
estimates for individual projects are all based on scientifically peer-
reviewed models that are designed to provide data that allow the 
Service to explicitly select the level of risk with respect to being 
more versus less protective of eagles. For each aspect of the 
management and permitting process, we are using values for decision-
making that shift the risk in an 80:20 ratio towards being protective 
of eagles. Thus, the actual eagle population size in each EMU and the 
true sustainable take rate are both highly likely (80% likely) to be 
larger than the values used by the Service, so that when they are 
multiplied together to get the take limit, that value is even more 
unlikely to exceed the actual sustainable take limit for the EMU. 
Similarly, the eagle fatality estimates for individual wind projects 
are unlikely to underestimate the actual take rates, and as a result, 
authorized take over all wind projects is very unlikely to exceed the 
EMU take limits. While improvements in the precision of all of these 
estimates through adaptive management should decrease uncertainty and 
thus shrink the magnitude of the difference between the expected 
fatality rate and the permitted take limit over time, as a matter of 
policy, the difference will always be in favor of protection of eagles. 
Furthermore, all golden eagle take authorized under this permit 
regulation will require compensatory mitigation at a 1.2 to 1 ratio, 
meaning that for every five incidental takes of golden eagles, six 
golden eagles will be protected that otherwise would have been lost.
    Comment: The final rule should clarify that its increased take 
limits and permit durations apply to all industries. The Service should 
clarify that permits will be issued to all applicants on an equal basis 
and that the number of eagle takes authorized and the term of the 
permit will not depend on the applicant's industry.
    Response: The increased take limits apply equally to all industry 
types. The increased permit duration also applies to all types of 
entities. We will issue permits to all applicants on an equal basis. 
The number of eagle takes authorized and the term of the permit will 
depend on the specifics of the individual project and not the 
applicant's industry.
    Comment: While the short duration may be a deterrent to industries 
to applying for permits and participating in a regulation scheme, a 
600% increase in duration is too large of a leap. The Service should 
consider a 15-year initial permit duration, with a renewal option every 
5 years. This approach balances the need for a longer, more realistic 
permitting procedure with the need to closely regulate the potential 
for loss of life and nests of these eagles, which remain protected 
species.
    Comment: Given the rapid changes due to climate change in the 
region, especially related to water regimens and their impact on 
habitat and eagle prey populations, it would seem prudent to limit the 
maximum permit duration to 5 years in order to more rapidly respond to 
changes in local eagle populations and productivity wrought by climate 
change. A more conservative, shorter-duration permit than 30 years 
provides opportunities for real-time incorporation of rapidly evolving 
scientific knowledge, especially regarding population estimates, take 
thresholds and caps, and evaluation of unforeseen impacts and changes 
in the population dynamics of eagles.
    Comment: The rule should be clear that permit duration will be 
tiered to certainty of risk and expected impacts to eagles, both of 
which remain extremely uncertain.
    Response: These final regulations establish a maximum permit 
duration of 30 years. Permits valid for longer than 5 years can be of 
any duration between 5 years and 30 years. The Service will consider 
the degree of uncertainty as to the effects of the permitted activity, 
site-specific factors, and other information to determine appropriate 
durations for individual permits.

[[Page 91516]]

    Comment: The 5-year reviews of long-term permits are unnecessary, 
especially for projects for which the adaptive management strategy can 
respond to actual events. Every project that receives a permit under 
this rule will provide annual reports to the Service, providing the 
Service the opportunity to regularly review the specific eagle 
mortality, avoidance, minimization, adaptive management, and mitigation 
measures addressed in a permit. Formal review periods short of the 
permit term would invalidate the protections and intent of the 30-year 
permit.
    Comment: While the 5-year review periods are appropriate, they 
would not be necessary for all projects, particularly if a fatality 
prediction is low. Any in-depth review should be reserved for extreme 
cases where data prove continued operation under current permit 
conditions would result in population-level impacts.
    Comment: A wind project 20- to 30-year eagle permit with 
substantive reviews every 5 years is very difficult to finance and 
operate commercially. Opening up the eagle permit for substantive 
reviews every 5 years is a significant financial uncertainty, 
burdensome to already overly committed Service staff, and a cost for 
applicants that presents a significant disincentive to seek a permit.
    Response: The 5-year review is a reasonable and justified provision 
that appropriately balances the Service's responsibility to ensure the 
preservation of bald and golden eagles, while also creating benefits to 
industries seeking long-term permits. In response to the comment that 
the reviews are unnecessary, particularly for projects for which the 
adaptive management strategy can respond to actual events, the 5-year 
review is the mechanism by which we determine whether the adaptive 
management strategy is able to respond to actual events. Annual reports 
are important, but eagle presence and exposure to permitted activities 
varies from year to year, such that it would be imprudent (not to 
mention impractical) for the Service to react annually to those 
variable events.
    We anticipate that the 5-year reviews will typically benefit 
permittees because, under the conservative management approach we are 
taking, the authorized take will usually be higher than the actual 
take. For golden eagles, this means that excess compensatory mitigation 
can be credited to the permittee at that point and the excess 
``rolled'' into the next 5-year period. Without the 5-year review, most 
long-term permittees will contribute more compensatory mitigation than 
is needed to meet the compensatory mitigation ratio of 1.2 to 1. The 
typically lower take rate will also mean the Service can adjust the 
authorized take to a lower amount for permits for both species of 
eagles, and adjust debits to the EMU and LAP take limits appropriately. 
Additionally, the 5-year review may demonstrate that some conservation 
measures or other permit conditions may not be effective or necessary, 
allowing the Service to reduce or eliminate those requirements.
    Even for permits with low fatality predictions, we believe it would 
be remiss not to review whether eagle take is within the authorized 
level, and whether there are elements of the adaptive management 
strategy that should be implemented. That a long-term permit with 
substantive reviews every 5 years might in some cases be ``very 
difficult to finance and operate commercially'' is a factor that 
project proponents will need to consider when siting projects in eagle 
habitat.
    In response to concerns that shorter-term permits are necessary to 
protect eagles from effects of climate change or other factors that 
could affect eagle populations, we agree that under the most ideal 
circumstances for eagles, owners and operators of projects in eagle 
habitat could be persuaded or, if necessary, be required to revisit and 
modify any aspect of their operations to benefit eagles. That ideal is 
simply not realistic, whether the activity is permitted under a 5-, 10-
, or 30-year permit. For good or for worse, much of the physical 
infrastructure that humans establish on the landscape is semi-permanent 
in nature, and projects are as unlikely to be significantly altered at 
the end of a 5-year eagle take permit term as they are at the 5-year 
point of a 30-year permit. The situation up until the time of this 
final rule being issued is that the Service has issued only four 
permits for ongoing take that may occur over decades. We expect many 
more projects to seek permits with longer durations because the longer 
duration is the single biggest change project proponents and operators 
have attested they need for this permit program to be workable for 
longer-term activities. Compared to a scenario where activities that 
take eagles do so with little to no avoidance and minimization measures 
to protect eagles, and no compensatory mitigation, we anticipate that 
long-term permits with adaptive management strategies and 5-year 
reviews will be beneficial to eagle populations.
    Comment: It may be justifiable for projects that exceed the take 
authorization specified in the permit to be required to implement 
additional measures and seek a permit amendment. However, the permit 
cannot be re-opened for reasons unrelated to the project or outside the 
permittee's control. These reasons may include unanticipated 
detrimental changes in the status of the local population due to 
factors such as non-permitted take (e.g., shooting, poisoning); 
disease; or shifting/declining ranges due to climate change, fire, or 
other environmental factors. The rule must be clear that permittees 
would not be responsible for implementing additional mitigation or 
minimization measures due to these circumstances. At a minimum, the 
rule should establish long-term adaptive management cost caps that can 
be relied on to ensure project viability.
    Comment: Given that eagle populations can change significantly over 
30 years, the final rule should detail an adaptive management approach 
that ensures the Service retains the ability to reduce take if eagle 
populations are negatively influenced during the life of the permit.
    Comment: The final rule should incorporate clarifying language 
indicating that the Service retains the ability to revoke a permit for 
continued excessive take, and it should more clearly define a process 
by which permits may be revoked.
    Response: This final rule incorporates modified language to address 
the adaptive management provisions and the types of actions the Service 
may take in 5-year reviews. Specifically, more emphasis will be placed 
on building in a robust suite of adaptive management measures upfront 
in the permit. If a permittee is in compliance with permit terms and 
the authorized take under the permit is not exceeded, no other actions 
will be required. With consent of the permittee, the Service may make 
additional changes to a permit, including additional or modified, 
appropriate and practicable avoidance and/or minimization measures that 
are likely to reduce risk to eagles. If the permittee agrees to 
undertake such additional measures, appropriate adjustments will be 
made in fatality predictions, take estimates, and compensatory 
mitigation.
    If authorized take is exceeded, that will generally trigger 
modifications by the Service. However, whether modifications to permit 
terms are required will depend on the circumstances. Because the 
Service will set take authorizations conservatively, we expect actual 
take to be lower than what was authorized 80% of the time and higher 
than what was authorized only 20% of the time, at least during the 
first 5 years, prior to predicted take

[[Page 91517]]

being adjusted based on the observed levels of take in the first 5 
years. Because 20% of permitted projects are expected to exceed the 
authorized take levels, the appropriate response when that occurs 
depends on the circumstances, including how much actual take exceeded 
authorized take, and what other factors, if any, may have affected the 
take level.
    Permit revocation criteria that apply to all Service permits are 
found at 50 CFR 13.28. Section 13.28(a)(5) provides that a permit may 
be revoked if ``the population(s) of the wildlife or plant that is the 
subject of the permit declines to the extent that continuation of the 
permitted activity would be detrimental to maintenance or recovery of 
the affected population.'' Prior to any permit revocation under such 
conditions, the Service is likely to request that the permittee adopt 
additional measures to avoid and minimize take of eagles rather than be 
subject to permit revocation.
    Comment: The idea of a periodic review of a permit for 
effectiveness has merit, but is a 5-year period for the 30-year permit 
the best timeframe? If in the first year or two the actual documented 
take significantly exceeds the predicted take, should action not be 
initiated sooner? Or, if actual take is at predicted levels, or lower 
than predicted, would that create the basis for the permit to move to a 
10-year mandatory review period? The use of an arbitrary timeframe 
versus actual impacts as the trigger for a review raises questions.
    Comment: If the final rule retains the provision for long-term 
permits, they should be evaluated at shorter intervals than 5 years. 
Permits should be automatically reviewed if the number of take exceeds 
the average annual ``take'' (e.g., a 3-year permit that allots a total 
take of 10 ``units'' should be reviewed if there are more than 4 
``units'' of take in that year).
    Comment: The statement that the Service will evaluate each long-
term permit at no more than 5-year intervals presents ambiguity that 
may result in inconsistent administration of the program. The statement 
implies that the evaluation interval could be conducted at less than 5 
years. If a definitive timeframe cannot be established, the final rule 
should describe when evaluations would occur at less than a 5-year 
interval.
    Response: The rationale for the 5-year timeframe for the periodic 
review is as follows. The observed level of take is likely to vary from 
year to year. For example, in the first 2 years, there may be no take, 
but in the third year, perhaps due to environmental factors, estimated 
take (based on observed levels of take using approved protocols for 
monitoring, searching, and estimating take) is three eagles. If no take 
occurs in years four and five, then take over the 5-year period totals 
three eagles, which gives the Service and the permittee a reasonable 
idea of what the average level of take is likely to be. If it happened 
that three eagles were taken the first year, but none in the next 4 
years, the average would be the same: Three eagles over a 5-year 
period, but it might have appeared after the first year that annual 
take would be higher because year one had a much higher level of take 
than the four subsequent years. For that reason, we are unlikely to 
revisit the permit terms within the 5-year period unless the level of 
take exceeds anticipated and authorized take levels for the 5-year 
period.
    Comment: The final rule should describe, at a minimum: (1) The 
consequences to, and expectations for, the applicant of unexpected 
take; (2) the specific additional mitigation measures that may be 
required; and (3) any relevant ``triggers,'' such as when permits will 
be reviewed.
    Response: In general, as noted in our response to the previous 
comments, the Service will conduct permit reviews for long-term permits 
every 5 years. As noted above, if authorized take levels for the 5-year 
period are exceeded, we may need to revisit the permit terms and 
conditions sooner than in year 5. Individual permits will have 
different adaptive management measures tailored for the type of 
activity and site-specific factors spelled out, including when the 
permittee would need to implement them.
    Comment: The Service must adopt a process by which the public and 
concerned conservation organizations will be routinely involved in the 
``internal'' 5-year reviews if a 30-year permit is approved. Otherwise, 
to adhere to the NEPA provisions for public involvement in the 
permitting process, the Service will need to continue with a 5-year 
permitting system.
    Response: There is not a requirement under NEPA to involve the 
public in a permit renewal process or a 5-year review process unless 
there is a need to supplement the associated NEPA analysis underpinning 
the original permit decision. Public involvement would be limited to 
reviewing a draft supplemental EA/EIS and would not be part of 
Service's regulatory review procedure set out for the permit itself, 
whether the action is permit renewal for a 5-year permit or a permit 
evaluation conducted every 5 years. Accordingly, there is no difference 
in public involvement through NEPA between a 5-year review and a 5-year 
renewal.
    Comment: The internal review process could eliminate or 
significantly curtail public and state agency participation, input, and 
oversight after the permit is initially granted. Language should be 
included in the rule that expressly allows for public/state agency 
mortality and other data sharing, input, and review at each 5-year 
interval.
    Response: We will coordinate with states and other government 
agencies (e.g., federal and tribal) that have regulatory oversight over 
the permitted activity and which could be affected by changes to the 
federal authorization, when conducting the 5-year reviews. Involving 
the public would entail public hearings or notice and comment in the 
Federal Register, greatly increasing Service workload and costs, 
resulting in delays, and generally making the 5-year review unworkable.
    Comment: The Service should notify all affected tribes when it is 
conducting a 5-year review of a permit. Upon notice, affected tribes 
should be invited to consult or provide input on the permit, including 
a consideration of whether eagle takes under the permit necessitate 
permit modification.
    Response: The same factors would trigger consultation at 5-year 
reviews as for the initial permit issuance, i.e., whether the action 
(permit issuance or 5-year review) may affect particular tribes. If, at 
the beginning of the 5-year review based on information supplied by the 
permittee, we determine it is not likely any changes will need to be 
made to the permit, or that any required changes are unlikely to affect 
particular tribes, then consultation would not be warranted. There may 
be unusual circumstances when consultation would be appropriate on a 5-
year review for a project when changes may affect tribal interests, 
even when the activity did not need consultation in the first place 
when initially permitted.
    Comment: The Service should commit to conduct NEPA reviews at the 
time it considers issuance of an eagle permit, not at additional 5-year 
intervals over the life of the permit.
    Response: Some level of NEPA review (EIS, EA, or categorical 
exclusion) is always required when a federal agency issues a permit to 
authorize any otherwise-prohibited activity. We would only need to 
conduct additional NEPA analysis at the 5-year review stage if the 
scope or conditions of the authorization substantially change to the 
point where supplemental NEPA analysis would be required.

[[Page 91518]]

    Comment: The Service has failed to outline how the results of its 
5-year review process will be shared with the public at large or 
interested tribes or how the review process will trigger additional 
obligations to engage in informed and meaningful tribal consultation 
about the project under existing laws and policy, including section 106 
of the National Historic Preservation Act (NHPA).
    Response: The Service will continue to make mortality information 
from the annual reports that each permittee is required to submit under 
Sec.  22.26(c)(3) available to the public. Neither the 5-year review 
process nor the original permit-issuance process contains a public-
notice requirement. Public participation in the initial permit issuance 
process is currently, and will remain, limited to any NEPA analysis 
that is required to accompany permit issuance, if appropriate (for 
example, public participation would be required for an EIS and is 
discretionary, consistent with Council on Environmental Quality (CEQ) 
and Department of the Interior (DOI) NEPA regulations, for an EA; see 
40 CFR parts 1500-1508 and 43 CFR part 46, respectively). Similarly, 
public participation in the 5-year-review process will be limited to 
any NEPA compliance necessary at that time, which would most likely 
take the form of supplementation of the original NEPA analysis 
accompanying permit issuance. NHPA compliance is unlikely to be 
triggered at the 5-year-review stage unless the Service determines it 
is necessary to supplement the original permit-issuance NEPA analysis. 
The Service will continue to engage and consult with federally 
recognized tribes if the 5-year-review process reveals significant 
changes in the effects of the permitted activity on eagles or leads to 
any changes to the permit that may affect those tribes.
    Comment: A 5-year permit term does not pose any unreasonable 
hardship to permittees or to the Service. The permittee has the 
opportunity to renew the permit at the end of the 5-year term, and 
there is no reason to believe that a permittee who is compliant with 
applicable law and the permit conditions will be denied renewal. For 
permittees whose projects are not in compliance with their permit or 
applicable law, the Service will retain its leverage in ensuring 
compliance if it has the opportunity to not renew the permit. Once a 
permit is issued, a permittee will vigorously resist any new measures 
being imposed on its permit, will argue that additional measures are 
not worth the cost, and will likely challenge imposition of costly new 
measures in court rather than complying with them at the outset. At 
minimum, the permittee will have significantly more (and the Service 
less) leverage if the Service is in the position of adding new 
conditions to an existing permit as opposed to a permit renewal 
context.
    Response: We agree that a 5-year permit was not ``an unreasonable 
hardship'' to permittees and also that there is no reason to believe 
that a permittee who is compliant with applicable law and the permit 
conditions will be denied renewal. However, many potential applicants 
had a different perspective that appears to have dissuaded them from 
obtaining permit coverage. And, we do not agree with the commenter that 
we lose leverage under longer-term permits to ensure compliance with 
permit terms. We also do not agree that long-term permittees are more 
likely to resist new measures than permittees needing to renew permits 
for ongoing operations. If anything, long-term permittees would be less 
likely to resist changes imposed at the 5-year stage because the 
additional measures will, in many cases, already be part of the 
adaptive management terms and conditions of long-term permits.
    Comment: The Service's commitment to engage in a 5-year review 
process offers little comfort, since little can be done to avoid any 
unanticipated level of take of eagles after the facility is developed. 
The Service's assertion that it will ``always retain the ability to 
suspend and/or revoke the permit'' (presumably should it find that the 
activity is not compatible with the preservation of the eagle) is not 
convincing. Practical, financial, and political constraints will make 
it virtually impossible for the Service to live up to this assertion.
    Response: The statement that ``little can be done to avoid any 
unanticipated level of take of eagles after the facility is developed'' 
is not a good argument for a 5-year permit over a permit of longer 
duration. How would the Service's failure to renew a 5-year permit for 
a long-term project have greater effect than our ability to continue to 
work with longer-term permittees to adapt avoidance and minimization 
measures and ensure appropriate compensatory mitigation is carried out? 
The statement that practical, financial, and political constraints will 
make it virtually impossible for the Service to suspend or revoke long-
term permits is purely speculative. We acknowledge that suspension and 
revocation are options of last resort and that we would prefer, and 
intend, to work with permittees to rectify compliance issues prior to 
taking those steps. Such an approach is not less protective of eagles.
    Comment: The proposal to extend permit terms to 30 years fails to 
recognize that subsequent administrations of federal or state 
governments might pass new laws or regulations within the next 30 years 
that strengthen protections applicable to eagles or wildlife. In such 
case, permittees will likely try to resist compliance with new 
protections by arguing that they have ``grandfathered'' rights under 
their permits.
    Response: We cannot predict future laws or regulations that may 
strengthen (or reduce) protections for bald and golden eagles, and we 
do not have the resources to monitor every new change in laws and 
regulations at the state, tribal, and local level. We will continue to 
rely on our working relationships with state, tribal, and local 
wildlife agencies to coordinate management and protection of bald and 
golden eagle populations. We do not enforce or interpret non-federal 
laws and will continue to rely on state, tribal, and local government 
entities to notify us of any potential violations for projects 
authorized under eagle incidental take permits. If we receive notice of 
a potential violation, we will work with the permittee and the relevant 
state, tribal, or local government entity with authority to enforce the 
applicable law or regulation to ensure the authorized project complies 
with the relevant law or regulation. This may require modification of 
permit conditions.
    Comment: The Service continues to rely on the notion that the 5-
year maximum permit duration is the ``primary factor'' discouraging 
permit applications, which is based on anecdotal information. Other 
science-based factors, such as lack of mitigation options and effective 
risk analysis, have significantly precluded eagle permit issuance.
    Response: We agree that the 5-year maximum permit duration has not 
been the only factor discouraging applications from the industrial 
sector. The lack of compensatory mitigation options has also been the 
subject of criticism from industry, and we are working with partners to 
develop metrics that would allow us to be confident that methods other 
than power line retrofits can be relied on to appropriately offset 
authorized take of eagles. We are also taking steps to establish third-
party mitigation funds and/or banks to facilitate compensatory 
mitigation requirements. Some potential applicants may be dissatisfied 
by the requirement for compensatory

[[Page 91519]]

mitigation for every authorized take of a golden eagle, but that 
requirement is ``science-based.'' It also stems from the statutory 
mandate that authorized take be compatible with the preservation of 
eagles.
    Comment: During the 5-year reviews, the Service should consider 
using the ``evidence of absence'' model, which is designed to tell how 
likely it is that take has not exceeded a certain number (with a 
certain degree of confidence). The model can be used to predict take 
and then a check-in may occur every few years to ensure a permittee 
does not go over its take limit.
    Response: The Service agrees with the commenter that robust 
estimators such as the ``evidence of absence estimator'' (Huso et al. 
2015) should be used to obtain unbiased estimates of mortality from 
systematic searches for animal remains. Such estimators should account 
for the proportion of animals killed that fall into the search area 
(which should also consider the spatial distribution of killed animal 
remains), the likelihood animal remains that fall into the search area 
will persist long enough to have an opportunity to be detected during a 
scheduled search, and the probability that a searcher will detect the 
remains during a search, and should include measures of uncertainty. 
However, there are a variety of robust estimators in the literature 
(see Korner-Nievergelt et al. 2015 for discussion of several), and the 
appropriate estimator for a particular site or survey may vary 
depending on details specific to the objectives and survey design; 
therefore, estimators should include the elements discussed above and 
should be considered on a case-by-case basis. The Service uses a 
Bayesian model to predict potential take of eagles at proposed land-
based wind facilities based on information collected before a facility 
is constructed and then incorporates data from systematic searches for 
eagle remains to update the model and predictions and evaluate take 
relative to what is authorized by a permit (see the ECPG, Appendix D, 
for additional details).
    Comment: Rather than issuing permits for up to 30 years, the 
Service should consider automatic renewal of 5-year permits in limited 
situations; for example, if impacts are less than expected; if eagle 
take has not occurred; or if eagle minutes are less than expected, the 
LAP is increasing, and eagle populations are stable.
    Response: Automatic or automated renewal under the described 
circumstances would be challenging, since some review would always be 
needed to ascertain whether these conditions are met. We agree that 
permit renewal should be relatively straightforward under these 
circumstances and we anticipate that being the case.

Definitions

    Comment: It seems pointless to try to make a distinction between 
``purposeful'' and ``incidental'' take.
    Response: While the impacts on eagles may be the same, we disagree 
that it is pointless to distinguish between purposeful and incidental 
take of eagles for the purposes of regulations. Purposeful take is 
generally very limited and different in practice than incidental take 
and requires different regulations to properly and efficiently regulate 
the various activities that fall within those categories.

Eagle Permit Fees

    Comment: The proposed fee is very high, including the proposed 
administration fee for long-term permits. High fee structures may 
discourage take permit applications. To the extent that the Service 
maintains this fee structure in the final rule, permit fees should be 
committed exclusively to the processing and administration of eagle 
take permits to expedite review of applications and permit processing.
    Response: The purpose of establishing such a fee structure is to 
provide capacity to process permits. Office of Management and Budget 
(OMB) Circular No. A-25 requires federal agencies to recoup the costs 
of ``special services'' that provide benefits to identifiable 
recipients. Permits are special services that authorize recipients to 
engage in activities that are otherwise prohibited. Our ability to 
provide effectively these special services is dependent upon either 
general appropriations, which are needed for other agency functions, or 
on user fees. Accordingly, the permit fees associated with eagles 
permits are intended to cover the costs the Service incurs processing 
the average permit. Nonetheless, in response to comments on the 
proposed rule, these final regulations adopt an $8,000 administration 
fee for long-term permits, rather than the proposed $15,000 fee.
    Comment: For small independent energy producers to enter the 
market, permit cost should be scaled properly, based, for example, on 
number of turbines, electric output, or risk to the local eagle 
population.
    Response: It is not practicable for the Service to assess and 
charge a unique fee per project seeking take authorization. As 
described in the fee section of this rule, the application fee for 
long-term permits was derived from average costs associated with 
processing these complex permits. Monitoring and mitigation costs, 
however, are scaled to the project, and would be expected to be lower 
for smaller-scale projects. The Service intends to involve the public 
in developing additional guidance for projects that pose a low risk of 
eagle take, which may be particularly relevant for small projects. 
Finally, in response to comments on the proposed rule, this final 
regulation adopts an $8,000 administration fee for long-term permits, 
rather than the proposed $15,000 fee.
    Comment: Increased fees will likely address some of the required 
costs to implement a revised program, but the Service is already 
greatly understaffed. The preferred alternative will be no more 
efficient or effective, nor will wait times for permits be improved, in 
the absence of sufficient and appropriate funding.
    Response: We cannot collect fees from the public to cover the costs 
of agency functions that are covered through funds appropriated by 
Congress. We can and do assess fees to cover the costs of special 
services that accrue only to certain members of the public, such as 
permit applicants and permittees.
    Comment: The proposed rule is not clear whether the fee structure 
changes for non-purposeful/incidental take (Sec.  22.26) and nest 
removal (Sec.  22.27) permit applications will apply to government 
entities, including municipalities, tribes, and state and federal 
agencies, or if these entities will remain exempt.
    Response: Regulations at 50 CFR 13.11(d)(3), which apply to these 
permits, waive the permit application fee for any federal, tribal, 
state, or local government agency or to any individual or institution 
acting on behalf of such agency.
    Comment: The application fee of $500 for a residential incidental 
take permit, plus a second $500 fee for an eagle nest take permit, 
seems prohibitively high for the average homeowner.
    Response: The $500 application processing fees for the incidental 
take permit and the eagle nest take permit have been in place since 
2009, and are not changing for homeowner applications. Also, we note 
that it is very rare that anyone needs both permits. Permits to remove 
nests cover associated disturbance to the eagles, and even the need for 
that is rare, since most nest take permits are for removal of alternate 
nests.

[[Page 91520]]

    Comment: The proposed permit fees and other costs associated with 
implementing required elements of an eagle permit drive up costs and 
provide little benefit to eagles.
    Response: We disagree that these regulations provide little benefit 
to eagles. These regulations require permittees to avoid and minimize 
impacts to eagles to the maximum extent practicable. Such measures will 
greatly benefit eagles.

Fatality Prediction Model

    Comment: The proposed rule implies that survey protocols the 
Service has developed for the wind industry will be applied to all 
activities that may require incidental take permits. This is 
inefficient and ignores that other protocols might be more suited to 
other activities.
    Response: The Service's proposal would only require use of 
industry- or activity-specific protocols when they exist. At this 
point, the only such standards are those included in this final rule 
for estimating eagle take at wind facilities. The Service plans to 
develop standards for other industries in the future, and will seek 
industry input in the development of those protocols.
    Comment: The collision risk model (CRM) recommended by the Service 
for eagle fatality estimation at wind projects relies on a sample size 
that is too small and data that are too outdated to provide reliable 
predictions for either golden or bald eagles. Research recently 
published in a peer-reviewed scientific journal provides new collision 
probability rate estimates that are based on more recent data and a 
larger data set collected from modern wind facilities. The Service 
should revise its model inputs to reflect this new information.
    Comment: Codifying the Service's CRM to estimate eagle fatalities 
at wind facilities is not appropriate because the model has changed 
four times since it was introduced in 2013. Incorporation into the 
regulations would inhibit further necessary improvements.
    Response: The Service has always intended to revise the collision 
probability component of the CRM using data collected under eagle 
incidental take permits at wind facilities. However, to date, so few 
incidental take permits have been issued at wind facilities that no 
progress has been made in this area. As an alternative for the 
immediate future, the Service believes that publicly available data 
collected at wind facilities operating without incidental eagle take 
permits can be appropriate for such an update, provided the data and 
protocols under which the data were collected can be verified and shown 
to be appropriate, and that the wind facilities that make their data 
available constitute a representative cross section of wind facilities 
in operation today. The Service is working with the authors of the 
referenced paper to conduct an evaluation of their data to determine if 
it meets the above criteria for use in updating the CRM. As to the CRM 
having changed rapidly since it was introduced, that is not the case. 
The CRM described in Appendix D of the ECPG is still the version being 
used by the Service. The CRM has had to be adapted on occasion to 
accommodate data collected by prospective permittees that did not 
follow Service guidance in Appendix C of the ECPG, but the CRM remains 
unchanged. As noted above, we do expect model inputs to change, and as 
noted in response to other comments, over time we may incorporate other 
scientifically supported covariates (variables that are possibly 
predictive of the outcome under study) associated with eagle collision 
risk into the CRM. In response to this and other comments, the Service 
has decided not to incorporate any parts of the ECPG into the rule so 
that future updates can be implemented without going through formal 
rulemaking.
    Comment: The rule should not restrict monitoring and survey options 
for wind projects to Service-approved ECPG protocols. The best 
available science should be applied to risk assessment and fatality 
monitoring.
    Response: The Service's eagle non-purposeful take permits program 
follows DOI policy by using a formal adaptive management framework to 
quantify and reduce scientific uncertainty. A major area of uncertainty 
is the mortality risk posed to eagles by individual wind facilities. 
When the Service created the non-purposeful take rule in 2009, there 
was no scientifically accepted way to estimate such risk. However, the 
Service must authorize a specific eagle take limit for each permit in 
order to ensure cumulative take from all permitted projects does not 
exceed regional take limits, or that appropriate compensatory 
mitigation is carried out if the take limits are exceeded. Service and 
U. S. Geological Survey scientists developed the CRM to estimate eagle 
fatalities at individual wind facilities using adaptive management; 
this approach necessitates the collection of standardized pre- and 
post-construction data and the use of the CRM, or a model much like it, 
to generate and update fatality estimates. For this reason, in the 
proposed rule, the Service contemplated codifying its current guidance 
regarding data collection and fatality predictions in the regulations. 
As this comment reflects, there was considerable opposition to this 
among commenters. In response, the Service has modified its proposal 
for this final rule by omitting the proposal to codify parts of the 
ECPG in the regulations. However, the adaptive management process 
cannot function credibly without standardized pre-construction site-
specific eagle exposure data, so the Service has instead incorporated 
minimum standards for such data for incidental take permits at wind 
facilities directly into this final rule, subject to waiver under 
exceptional circumstances. The Service also will not require permit 
applicants to use the CRM to estimate eagle fatalities for their permit 
applications; permit applicants can use any credible, scientifically 
peer-reviewed model to generate eagle fatality and associated 
uncertainty estimates for their applications. However, the Service will 
use the CRM and applicant-provided data to predict fatalities for each 
incidental eagle take permit for a wind facility. The Service will 
treat any alternative models used by the permit applicant as candidate 
models whose performance may be compared formally to that of the CRM as 
part of the adaptive management process.
    Comment: The Service's CRM is flawed and should not be required for 
use to estimate fatalities at wind facilities.
    Response: The Service's CRM was designed as an integral part of the 
adaptive management process, with model complexity and performance 
improving over time with use and formal updating. The CRM uses a 
Bayesian framework that allows for the formal combination of existing 
(prior) data with project-specific data for eagle exposure and 
collision probability. The Service requires eagle incidental take 
permit applicants to conduct pre-construction eagle-use surveys within 
the footprint of the planned wind facility to generate project-specific 
data on pre-construction eagle exposure. In the case of collision 
probability, however, there are no project-specific data to combine 
with the prior data until after the project has operated for several 
years. The Service uses prior information on collision probability from 
the only wind facilities that had publicly available data on eagle use 
and post-construction fatalities in 2013; these data came from four 
facilities; did not include information for bald eagles; and, for some, 
were from older-style wind turbines that might have different collision 
probabilities than modern

[[Page 91521]]

turbines. However, these deficiencies only affect the initial eagle 
fatality estimates at permitted wind facilities. The adaptive 
management approach calls for formally combining the prior information 
with standardized data collected on actual eagle fatalities after each 
facility becomes operational. These updates would occur no less 
frequently than once every 5 years at each facility. Such updates will 
naturally correct for any bias in the initial ``collision-prior-based'' 
fatality estimate, so that the fatality estimates over most of the life 
of a wind facility will be heavily weighted towards actual fatality 
data from the site. Moreover, the post-construction fatality 
information can be combined with data from other permitted wind 
facilities to update and improve the collision probability prior for 
the national CRM. Thus, the Service intends to improve the predictive 
accuracy of the CRM both at the individual project level and nationally 
through standardized use as a formal part of its adaptive management 
process.
    Comment: Eagle use, the main predictor variable in the CRM, is a 
poor predictor of eagle fatality risk. Use rates certainly failed to 
predict the golden eagle fatality rate at several wind facilities in 
Wyoming. Other factors besides eagle use are more important in 
determining eagle collision risk.
    Comment: The Service's current CRM assumes that modern wind 
turbines have the same risk profile as wind turbines installed many 
decades ago despite evidence to the contrary.
    Response: The Service disagrees that use rates cannot be used to 
predict eagle fatality risk. For example, the Service has demonstrated 
that use rates actually performed very well as predictors of golden 
eagle fatality risk at the same Wyoming wind facilities referenced in 
this comment. In fact, those facilities were used to demonstrate the 
effectiveness of the Service's CRM and adaptive management updating 
process for a scientific peer-reviewed journal article (New et al. 
2015). However, the Service agrees that other factors besides eagle use 
likely affect collision risk. The ECPG identifies 11 general categories 
of covariates that we believe may affect eagle collision probability to 
some degree, including three that relate to turbine design. However, 
these are not presently incorporated into the CRM because, as pointed 
out by peer reviewers of the draft ECPG, scientific support for the 
role of these factors in collision risk is speculative and not 
quantifiable at this time. Furthermore, the effects of these factors 
may vary across locations. The Service believes that over time, though 
application of the adaptive management process, scientific support will 
accrue for inclusion of some of these covariates in the CRM.
    Comment: Our Project Eagle Conservation Plan uses the Service's CRM 
estimated eagle take of one eagle per year. However, no eagle carcasses 
have been found in 3\1/2\ years of professional biologists monitoring.
    Response: The fact that no eagle mortalities have been discovered 
does not mean that no eagles have been killed. Detection rates for 
eagle carcasses on surveys are less than perfect, and scavengers can 
remove carcasses before they are detected. The Service relies on 
estimates that account for these factors that affect detection 
probability to estimate the actual eagle fatality rate. Also, as 
discussed in other responses, under the adaptive management framework, 
estimates of the numbers of eagles killed that account for search 
effort, detection, and scavenging based on the monitoring data would be 
used to update the CRM for the project and improve future predictions 
of fatalities based on site specific data.
    Comment: The Service's CRM vastly overestimates golden eagle 
mortality on the wind projects we have analyzed.
    Response: The Service has made the explicit decision to manage the 
quantified uncertainty in the CRM estimates in a manner that reduces 
the risk of underestimating eagle fatalities at wind facilities. The 
median (50th quantile) fatality rate estimate is the point at which 
there is an equal risk of underestimating and overestimating eagle 
fatalities. The Service uses the 80th quantile of the CRM estimate as 
the take limit for incidental take permits, which shifts the risk in an 
80:20 ratio away from underestimating eagle take. The Service believes 
this is appropriate because the consequences of underestimating eagle 
take are far greater than the consequences of overestimating take, and 
not just because of unintended consequences on eagle populations. For 
example, if eagle take at the individual permit level was consistently 
underestimated, many permittees would exceed their permitted take 
limits, necessitating permit amendments, additional costly and 
unplanned after-the-fact compensatory mitigation actions, and possible 
enforcement action with associated fines. For bald eagles with positive 
EMU take thresholds, consistently underestimating take could lead to 
permitted take exceeding the EMU take limit, which would necessitate 
retroactively requiring permittees that initially had no compensatory 
mitigation requirements to implement mitigation after the fact. 
Finally, if LAP take limits were unexpectedly exceeded, NEPA compliance 
for permits overlapping the affected LAP would have to be reviewed, 
possibly resulting in the need to develop supplemental NEPA documents 
or new EAs or EISs for operating wind projects. Although these 
consequences are most likely if there is a systematic bias in the 
fatality estimates themselves, even with an unbiased estimator some of 
these consequences could be expected with 50% of permits if the Service 
were to use the median fatality rate as the take limit for individual 
permits. In contrast, if permitted take is set at a higher percentile 
of the fatality prediction, the primary consequences are that the 
permittee is likely to exceed actual compensatory mitigation 
requirements over the first 5 years of operation (if compensatory 
mitigation is required). Additionally, the Service would likely 
routinely debit some take from the EMU and LAP take limits 
unnecessarily, thereby underestimating available take when considering 
new permit requests. Both of these issues are at least partially 
remedied when initial take estimates for projects are adjusted with 
project-specific fatality data after the first 5 years of operation.
    Comment: The Service should adopt an approach that only requires 
mitigation for actual, not predicted, eagle take under permits. 
Otherwise, permittees unfairly have to overcompensate for the true 
effect of their projects.
    Response: The Service must authorize a specific eagle take limit 
for each permit in order to ensure cumulative take from all permitted 
projects does not exceed regional take limits, or that appropriate 
compensatory mitigation is carried out if take limits are exceeded. As 
discussed in the previous response, the Service purposefully uses an 
estimator for wind projects that is unlikely to underestimate take to 
avoid the severe negative consequences that brings. However, over-
mitigation can be confirmed and rectified when the initial take 
estimates for projects are adjusted with project-specific fatality data 
after the first 5 years of operation. At that time, permittees receive 
credit for any excess compensatory mitigation they have achieved, and 
those credits can be carried forward to offset future eagle take for 
that project.
    Comment: The Service's CRM predicts unrealistically high rates of 
bald eagle fatalities at wind projects given the low number that have 
actually been reported. The Service needs to develop and use a separate 
fatality

[[Page 91522]]

prediction model for bald eagles based on new species-specific data 
collected per the recommendations in the ECPG.
    Comment: The Service recently released a draft Midwest Wind Multi-
Species Habitat Conservation Plan (HCP) for public comment. The draft 
HCP uses a version of the CRM to predict bald eagle impacts based on 
actual bald eagle data at wind energy facilities rather than solely 
relying on data from golden eagles and applying those data to bald 
eagles. The result is substantially different than the use of the 
Bayesian model based on golden eagle data and presents an assessment of 
bald eagle take that is both more realistic and more scientific than 
the proposed method. The Service should similarly here use data that 
are known to be specifically applicable to bald eagles. To that end, 
there are a number of ongoing studies and/or recently completed studies 
that could be used to provide a much better assessment of bald eagle 
risk and wind farms once they are made public.
    Response: We are aware of arguments that the CRM predicts 
unreasonably high rates of bald eagle fatalities at wind facilities; 
however, we have not received and had the opportunity to carefully 
review data that are publicly available that actually confirms this. 
The Service does not disagree that bald eagles may prove to be less at 
risk from blade-strike mortality than golden eagles, but there are 
plausible reasons to expect that bald eagle fatality rates may be more 
variable than those for golden eagles, and under some conditions bald 
eagle collision probabilities may actually be higher. The reasons are: 
(1) Bald eagles congregate in larger numbers than golden eagles, and 
while in those concentrations they engage in social behaviors that may 
increase their risk to blade strikes at a project sited in such an 
area; (2) 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 (3) a thorough 
study in Norway documented a substantial population-level negative 
effect of a wind facility there on a population of the closely related 
white-tailed eagle as a result of blade-strike mortality (Nygaard 
2010). Also, as noted in response to other comments, possible 
overestimates of risk are likely to be a problem only for the first 5 
years of operation, as the initial fatality estimates for permits at 
wind facilities are intended to be updated with project-specific, post-
construction fatality data within that time. As noted in response to 
other comments that expressed frustration with perceived frequent 
updating of the Service's CRM, this is an area of active research and 
investigation, and changes are to be expected as new information 
becomes available. The Service will make every effort, using the tools 
at its disposal, to disseminate information on changes or updates to 
the CRM when they occur.
    Comment: A process should be developed by which data and reports 
associated with pre- and post-construction surveys can be made readily 
available and the prior distributions can be updated in a streamlined 
manner for real time application to inform management decisions.
    Response: The proposed and this final rule state that monitoring 
reports required under incidental eagle take permits will be available 
for public inspection. The Service will use the data to perform formal 
Bayesian updates of the CRM and to generate updated fatality 
predictions for each individual project at no less than 5-year 
intervals, and we will update the prior data for collision probability 
and eagle exposure in the national model a regular interval, dependent 
on the amount of new data that is available.
    Comment: Eagle mortality related to electric transmission and 
distribution is vastly different than other forms of eagle mortality. 
These utility systems are complex, are located in varied landscapes, 
and can extend hundreds of thousands of miles. Bald and golden eagles 
interact with transmission and distribution facilities in different 
ways. Performing surveys across the country and by utility would be 
challenging and would provide varied results that may not be meaningful 
to the Service or the utility. Utilities have provided eagle and 
migratory bird mortality data to the Service for over a decade. 
Additional monitoring and mortality data seem redundant and problematic 
when this information has already been provided to the Service. The 
resources required for monitoring efforts could be better utilized by 
retrofitting high-risk poles.
    Response: In general, the Service agrees with this comment and will 
take these factors into consideration when developing pre-permitting 
data standards and permit terms and conditions for monitoring 
incidental take of eagles at electric transmission and distribution 
facilities and structures.
    Comment: While permittee monitoring of the permitted activity is 
reasonable, the regulations should not place a burden on permittees to 
monitor ``unpermitted take.''
    Response: The regulations do not ask permittees to monitor 
unpermitted take (except for take caused by the permitted activity that 
exceeds the take authorization). The Service compiles such information 
and uses the data in its LAP assessment, but this assessment does not 
require any information on unpermitted take be provided by the 
applicant.
    Comment: The Service does not provide sufficient evidence that 
monitoring is an effective use of resources that actually confers 
conservation benefits to eagles. The high cost of monitoring is 
especially concerning given that the Service has not indicated that 
such a burden would actually further the purposes of the permit. Overly 
burdensome monitoring requirements discourage permit applications.
    Response: Monitoring is among the most important and essential 
elements of the Service's eagle permitting program. The Service has 
acknowledged in these responses to comments and elsewhere (e.g., the 
ECPG, the proposed rule, and the PEIS) that considerable uncertainty 
exists in all aspects of the eagle permitting program, particularly 
with respect to the accuracy of models used to predict the effects of 
actions like the operation of wind turbines on eagles. The Service has 
followed DOI policy and designed the eagle permitting program within a 
formal adaptive management framework, as described in response to other 
comments, in the preamble to this final rule, and in detail in Appendix 
A of the ECPG. Monitoring is an essential and fundamental element of 
adaptive management; it is absolutely necessary to reduce uncertainty 
and improve confidence in the permitting process; it is also essential 
to account for and provide credit to permittees who over-mitigate for 
their eagle take in the initial years of wind project operation. We 
will continue to require monitoring as a condition of all incidental 
take permits for which uncertainty exists to fulfill the Service's 
adaptive management objectives and to ensure take of eagles is within 
the terms and conditions of the permit.
    Comment: Based on a review of data collected for pre-construction 
eagle use surveys, little in the way of standardization actually exists 
among the use rate data that the proposed rule characterizes as the 
products of a standard protocol.
    Response: We agree with this commenter that the ECPG, as non-
binding guidance, has not resulted in

[[Page 91523]]

the level of standardization that we had hoped. For that reason, we 
proposed incorporating key elements of the ECPG into the final rule by 
reference. Based on comments we received on the proposal, we have 
decided to instead include key language directly in this rule on pre-
construction survey procedures and resulting data that will be required 
for eagle incidental take permit applications at wind facilities, and 
general guidance for other activities. We have not included similar 
requirements in the rule regarding post-construction fatality 
monitoring because these survey protocols are incorporated as binding 
terms and conditions of the incidental take permits. We added language 
to the preamble of this rule that explains why we believe this action 
will improve standardization of data collection.
    Comment: The Service must not rely on any for-profit industry to 
monitor itself. Data obtained by third party monitors should be 
provided directly to the Service before or at the same time it is 
provided to project operators.
    Comment: To the extent there are even benefits to using third-party 
monitors, there are considerable costs to using them. Without a showing 
or evidence that observation and/or the reporting has been biased, it 
is unreasonably burdensome, arbitrary, and capricious to impose such 
costs.
    Response: We agree with the large number of entities that urged the 
Service to require third-party monitoring for some permits. The final 
regulations require that for all permits with durations longer than 5 
years, monitoring must be conducted by qualified, independent entities 
that report directly to the Service. In the case of permits of 5-year 
durations or shorter, such third-party monitoring may be required on a 
case-by-case basis. With regard to the second comment, we do not agree 
that there will be significant additional costs imposed by the 
requirement for third-party monitoring. Most companies already rely on 
and pay for consultants to conduct project monitoring, presumably 
because it is more cost-effective than supporting those activities 
``in-house.''
    Comment: The Service should not codify any parts of the ECPG as 
that document needs to be a living document. To the extent that the 
Service does codify parts of the ECPG, at a minimum the entire document 
should be subject to further notice and comment.
    Comment: The Service should provide a list of required data and 
estimates it needs to process an eagle incidental take permit request, 
rather than the methods by which the data must be obtained. The 
feedback loops between data collection and analysis that the Service 
notes as rationale for requiring standardized methods are not dependent 
on collection methods, only on data types.
    Response: In response to these and other comments, the Service has 
withdrawn the proposal to codify Appendices C and D of the ECPG. 
However, the adaptive management process underpinning the entire eagle 
incidental take permit program absolutely requires standardized pre-
construction, site-specific eagle exposure data. The second comment 
that the means by which the data are obtained do not matter for the 
adaptive management process is simply incorrect. Instead, the Service 
has incorporated minimum standards for such data for incidental take 
permits at wind facilities directly into this final rule, subject to 
waiver under exceptional circumstances. We also disagree with the 
suggestion that requiring these data standards necessitates additional 
notice and public comment. The rule language is restricted to key 
elements of Appendix C of the ECPG, which has gone through and been 
modified as a result of two rounds of public notice and comment, and 
the survey data requirements have been through two rounds of scientific 
peer review. These survey requirements should not be overly burdensome 
or unexpected because they were substantially modified after the first 
round of public comments on the ECPG to be largely compliant with the 
wind industry's existing voluntary standards for pre-construction eagle 
surveys. Moreover, these standards represent the minimum that the 
Service has specified as necessary to support an eagle incidental take 
permit application since 2013 (per the ECPG).
    Comment: All wind farms should be outfitted with remote video 
cameras on wind turbines that can be viewed at all times by the public 
to aid enforcement of wildlife mortalities.
    Response: The Service is unaware of data that show that video 
cameras on wind turbines are an effective means for obtaining unbiased 
estimates of eagle fatality rates. We firmly support the exploration 
and development of such technology, however, and these regulations are 
flexible enough to allow for their incorporation into post-construction 
monitoring protocols when warranted.

Local Area Populations

    Comment: In general the use of an LAP analysis to try to ensure no 
impact on local populations has merit but how are LAPs determined? 
Please provide a greater explanation with examples so there can be 
greater clarity in understanding the implications of the proposed rule 
and just how the more restrictive implications of the LAP analysis will 
provide protection to key areas.
    Response: The LAP is determined by extrapolating the average 
density of eagles in the pertinent EMU to the LAP area, which is the 
project area plus an 86-mile (bald eagle) or 104-mile (golden eagle) 
buffer; these distances are based on natal dispersal distances of each 
eagle species. As an example, consider a one-year golden eagle nest 
disturbance permit application in western Colorado, which is in Bird 
Conservation Region (BCR) 6 under the current 2009 EMUs. The activity 
being undertaken could lead to the loss of one-year's productivity, 
which has an expected value of 0.59 golden eagles removed from the 
population (the average one-year productivity of an occupied golden 
eagle territory in BCR 16 at the 80th quantile, as described in the 
Status Report). This EMU has an estimated golden eagle population size 
of 3,585 at the 20th quantile, and the BCR covers 199,523 square miles, 
yielding an average golden eagle density of 0.018 golden eagles per 
square mile. The local area around a single point (the nest to be 
disturbed in this case) is a circle with a radius of 109 miles, which 
yields an LAP area of 37,330 square miles, thus the estimated number of 
golden eagles in this LAP would be 671 individuals. The 5% LAP take 
limit for this permit under the current 2009 EMUs would be 34. The 
Service has developed a Geographic Information System (GIS) application 
that queries spatial databases on existing eagle take permit limits and 
known unpermitted take within the LAP area, as well as for any other 
permitted projects whose LAP intersects and overlaps the LAP of the 
permit under consideration. If this query indicates existing cumulative 
permitted (i.e., over all existing permits) take for the LAP area is 
less than 34, and the unpermitted take database and other information 
available to the Service does not suggest background take in the LAP is 
higher than average, a permit for the take of 0.59 golden eagles could 
be issued without further analysis of the effects on eagles by tiering 
off this PEIS. If either condition were not true, the permit would 
require additional NEPA analysis. In either case, if the permit is 
issued, it would require compensatory mitigation to offset the 
authorized take, because the EMU take limit for golden eagles is zero.

[[Page 91524]]

    Comment: Given the nature of the golden eagle population in the 
western United States, identification of local populations with 
meaningful demographics is very difficult, primarily due to emigration 
and immigration. Accordingly, the Service should focus on achieving 
only a stable or increasing EMU population.
    Comment: As long as national and EMU eagle populations stay stable 
or increase, the Service's goals for eagles have been met. The LAP 
analysis is unnecessary and burdensome, and has no biological value.
    Response: The Service disagrees. Biologically, recent data from 
satellite tracking studies show that while both bald and golden eagles 
range widely, there is high philopatry to natal, wintering, and 
migration stopover areas. Thus, local impacts can have far-reaching 
effects on eagle populations. Local populations of eagles also are of 
great cultural and social importance. The Service received many 
comments from states, tribes, local governments, and environmental 
organizations to this effect, and in support of including the 
persistence of local eagle populations in the management objective for 
eagles. Thus, the Service concludes that preservation of local eagle 
populations accomplishes both important biological and cultural 
objectives.
    Comment: Assuming uniform density in the LAP analysis 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. The Service should account for variation in density, as well 
as improved knowledge of seasonal changes in eagle density and 
population-specific movement patterns.
    Comment: We recommend that the Service's analysis includes more 
precise bald eagle LAP data where available. This would ensure that 
permitting decisions are well-aligned with the proposed preservation 
standard, and would be consistent with the Service's commitment to use 
the best available information and practice the best science.
    Response: The Service agrees with these comments in principle. The 
Service acknowledges two limitations in using the LAP method to 
regulate incidental take. First, eagle density estimates are derived 
from nesting or late-summer population surveys; therefore, estimates do 
not account for seasonal influxes of eagles that occur through 
migration and dispersal. Second, eagle density estimates are not 
uniform across the EMU. Current LAP take thresholds allow the Service 
to authorize limited take of eagles while favoring eagle conservation 
in the face of the uncertainty. Given better information on resource 
selection, seasonal variation in density, and an improved understanding 
of seasonal changes in eagle density and population-specific movement 
patterns, the Service will refine the LAP analysis to better assess 
potential impacts of projects. We do not believe it would be 
appropriate to make such adjustments piecemeal or on a case-by-case 
basis, because LAP areas extend across state and even EMU boundaries; 
thus, a common frame of reference is necessary throughout each LAP. We 
are actively engaged in research designed to allow for better 
accounting of spatial and temporal variation in eagle density in the 
LAP calculations. We will incorporate these improvements to the LAP 
analysis as better estimation procedures are developed through formal 
updates to the ECPG after notice and public comment.
    Comment: By requiring the LAP analysis and setting a take limit of 
5% for the LAP, the Service appears to be setting a ``hard cap'' on 
take at this scale. It is unclear whether any take exceeding 5% of the 
LAP would be allowed, even if offset by compensatory mitigation.
    Comment: The LAP analysis could unnecessarily limit incidental take 
and add to the regulatory burden, thereby potentially limiting some 
economic development in high-density bald eagle areas, without 
providing conservation benefit. In contrast, implementing the LAP 
analysis as proposed could put areas of low bald eagle densities at 
higher than necessary risk of local depletion.
    Comment: We recommend that the LAP provision be applied as 
guidance, not regulation, especially for areas of high eagle densities 
that are not at risk of local depletion from limited take.
    Comment: The proposed rule language setting a 5% LAP take limit is 
highly concerning. As written, it appears that no permits would be 
issued to new projects unless those projects can somehow reduce their 
own historic take.
    Response: The purpose of the 5% LAP take limit is to ensure that 
projects that tier off this PEIS will not cause the extirpation of 
local eagle populations. Exceeding the 5% LAP take limit does not mean 
that we cannot or would not issue a permit. Instead, it would trigger a 
harder look at local eagle population effects at the individual project 
level, often through development of a project-level EA or EIS. The 
result of that analysis could be a determination that the permit would 
be inconsistent with the Eagle Act preservation standard, in which case 
the Service would either not issue the permit or might determine that, 
with the application of LAP-level compensatory mitigation, a permit 
could be issued. However, in some cases, mostly involving bald eagles, 
we expect the closer look would show that, despite the high local take 
rate, eagle populations at the LAP scale are robust enough to withstand 
additional take, in which case LAP-level mitigation might not be 
required in order to issue an incidental eagle take permit. The main 
point is that the effect at the LAP scale of take exceeding 5% will 
have to be determined on a case-by-case basis. Based on our analysis of 
the population-level effects of take for bald eagles, we do not believe 
that applying the LAP-scale analysis as proposed risks causing the 
extirpation of local bald eagle populations even in areas of lower-
than-average density.
    Comment: The unpermitted take is part of the baseline above which 
the LAP permit thresholds are applied, and it therefore must not be 
subtracted from available take at the scale of the LAP or EMU.
    Response: The Service has determined that take, authorized or not, 
that was occurring prior to 2009 does not need to be accounted for 
within the EMU take limits. This determination does not apply to the 
LAP take limits, nor does it apply to unpermitted take that has been 
added since 2009.
    Comment: Taking into account unpermitted take within an LAP is 
problematic because many regions may already exceed the 5% take limit 
cap by virtue of the existing activities to which unauthorized take is 
attributed. This means that unpermitted projects are essentially given 
priority over permitted projects.
    Comment: The LAP approach seemingly penalizes developers for siting 
projects in areas with fewer eagles, which, if true, is entirely 
counter-intuitive, counterproductive, and opposite from what a permit 
program of this nature should attempt to accomplish. In areas where 
eagle densities are low, the chances that the 5% LAP take limit will be 
exceeded is higher.
    Response: Because the 5% LAP take limit only applies to Service-
authorized take, the take limit itself does not result in a priority 
being given to unpermitted take. However, it would be irresponsible not 
to consider such information when and where it is available, and that 
is what this component of the proposed rule requires. For example, take 
of golden eagles in the vicinity of the Altamont Wind Resource Area in

[[Page 91525]]

California is not currently under permit, yet that take has been well 
studied and would necessarily have to be considered as part of the 
cumulative effects considerations when evaluating an incidental eagle 
take permit application in that region.
    The LAP approach will not penalize developers for siting projects 
in areas with fewer eagles. Because the Service uses the mean eagle 
population density for all LAPs within an EMU, there is no difference 
in the LAP population calculated for high- or low-density areas with 
respect to the LAP analysis.
    Comment: Using unpermitted take as a metric for permit issuance 
provides deference to developers and others who choose not to obtain 
eagle permits, and increases costs for those who do. This creates a de 
facto prioritization of unpermitted take instead of penalizing those 
who take eagles illegally.
    Response: The Service agrees that eagle take that is not authorized 
by permits should not take precedence over take for which permits are 
sought. Yet, biologically, either form of take results in mortality, 
which has the same effect on eagle populations, and so both must be 
accounted for in the Service's analyses and its determinations of 
whether additional mortality can be sustained relative to the 
population objectives. Relative to illegal take, the Service's Office 
of Law Enforcement and DOJ have placed a high priority on enforcement 
of the eagle take regulations, and those efforts have resulted in 
several recent settlement agreements with operating wind facilities. 
The Service intends to increase its prioritization of Eagle Act 
enforcement efforts following implementation of this rule change with 
the hopes of increasing incentives for project proponents to seek 
permits to cover take that is currently unpermitted but which might 
meet the requirements for coverage under an incidental take permit.
    Comment: Because the proposed rule intends to rely on an LAP take 
limit to demonstrate no significant impact, it must analyze and 
quantify all eagle impacts, including unauthorized take levels, based 
upon the best available science and demonstrate how an LAP can sustain 
additional authorized take. It is inappropriate to limit analyses to 
authorized take only, which will severely underrepresent actual impacts 
to eagles. A science-based approach would commit to using the best 
available information to estimate the level of unauthorized take and 
then updating that information on a regular basis.
    Comment: Take estimates are necessarily speculative for these 
unauthorized take sources, and Service personnel could use the proposed 
5% LAP cap to deny an eagle permit on this basis.
    Comment: In order to meet its preservation standard, the Service 
must require permit issuance determinations that consider all sources 
of anthropogenic take. The Service must address cumulative authorized 
and unauthorized take in an LAP when determining permit eligibility by 
revising 50 CFR 22.6(f)(2) as follows: The take will likely not result 
in cumulative anthropogenic [remove: authorized] take that exceeds 15 
percent of the LAP, or the Service can determine that permitting such 
take [remove: over 5 percent of that LAP] is compatible with the 
preservation of the bald eagle or the golden eagle.
    Comment: The proposed rule states that Service biologists would 
consider any available information on unpermitted take within the LAP 
area; evidence of excessive unpermitted take would be taken into 
consideration in evaluating whether to issue the permit. What would 
constitute ``any available information''? Who would be responsible for 
determining whether there was ``excessive unpermitted take''? How is 
``excessive'' defined?
    Response: The Service agrees that our estimates of unpermitted take 
are generally going to be speculative. There is only so much that can 
be done scientifically with anecdotal, incidental information, which 
characterizes most of the information that exists on unpermitted eagle 
take. However, the Service's proposal makes it very clear that we do 
intend to consider available information on unpermitted take as part of 
the LAP assessment. While the automatic trigger for additional analysis 
that could lead to a negative permit finding is a permitted take rate 
in excess of 5% of the estimated LAP, a high unpermitted take rate 
could also trigger the need for additional analysis and a negative 
finding with respect to permit issuance. For golden eagles, we have 
identified that an unpermitted take rate in excess of 10% could be 
considered high; for bald eagles, we have no scientific basis for 
establishing such a threshold. However, because unpermitted take is 
incompletely known and the degree of knowledge varies greatly from 
place to place, there will be few if any locations where unpermitted 
take can be accurately estimated, which means that in most cases the 
known unpermitted take will be greater than what is indicated by the 
available data. That is why the Service does not propose to set a hard 
limit on overall take, or on unpermitted take specifically. Instead, 
the Service will necessarily rely on best judgment to decide whether 
unpermitted take in any particular LAP is in excess of levels that 
would allow for additional take without risking extirpation of the LAP. 
Where data show that unauthorized take exceeds 10% of the LAP, if the 
incidental take permit is issued, the Service may require compensatory 
mitigation even if the EMU take threshold has not been exceeded. 
Finally, with respect to the burden on applicants, Service biologists 
will conduct the LAP analysis, and as such it will not trigger 
additional work for the permit applicant. To assist with the assessment 
of unpermitted take at the LAP scale, the Service has compiled and will 
continue to compile all available information from eagle necropsy 
reports, Office of Law Enforcement investigations, Special Purpose 
Utility Permit reports, and other sources into a national database that 
will be queried by Service biologists using a spatial GIS tool as part 
of each LAP analysis. We have also established internal processes that 
will result in more dead eagles being necropsied (to provide 
information about cause of death) and included in the database.
    Comment: The Service should select an alternative in the PEIS where 
the LAP analysis approach is not incorporated into the regulations. 
Instead, it should develop specific eagle population size goals (other 
than the 2009 baseline) for each EMU and then use those targets to 
inform permit decisions within the EMUs, rather than the LAPs.
    Response: The Service considered a number of other alternatives as 
possible management objectives for EMUs, among them setting EMU-
specific population objectives. However, given the timeframe that was 
established for this rulemaking, the complexity involved in setting 
EMU-specific management objectives, and the lack of demographic data 
specific to each EMU, the Service decided to consider only the 2009 
EMUs and Flyways as EMU alternatives for the PEIS, and to incorporate 
objectives for the persistence of local populations though a coupled 
LAP assessment process.
    Comment: The Service should ensure that EMU and LAP take level 
analyses are aligned or provide an explanation as to why they are not. 
Eagle density estimates should not account for wintering or migrating 
birds for determining take levels in an LAP. Using density estimates is 
a liberal approach, which could allow for more

[[Page 91526]]

take (e.g., involving overwintering birds that would eventually breed 
far from the LAP) than can be sustained by the resident breeding 
population in that same LAP. The Service should consider a mechanism 
for segmenting the population being impacted (e.g., breeding/year-round 
vs. wintering/migrating).
    Response: The EMU and LAP take limits are aligned to the degree 
that, across an EMU, we would expect a landscape with some areas (e.g., 
in proximity to permitted projects) having comparatively high levels of 
authorized anthropogenic mortality but within the LAP take limit, but 
offset by other areas where authorized anthropogenic take is low, 
averaging to a maximum anthropogenic take across the entire EMU equal 
to or less than the EMU take limit. The eagle density estimates used to 
determine the 5% LAP take limit are summer population levels, and as 
such do not account for or include wintering or migrant eagles that 
will likely comprise some of the actual take. Thus, the take limits are 
conservative with respect to local breeding populations, not liberal as 
this comment suggests. The Service has initiated a genetic and isotopic 
assignment test project in conjunction with other cooperators with the 
goal of eventually being able to determine the approximate natal origin 
of eagles taken under permits. If this effort is successful, the 
Service will eventually be able to manage eagle take according to natal 
population. Until such time, we will continue to manage take in the 
conservative manner described here.
    Comment: The proposed 5% LAP take limit for bald eagles in the 
southwest EMU exceeds Arizona's population growth rate of an average of 
3.7% annually and could cause population declines. The Service should 
evaluate a separate EMU and a separate take limit for bald eagles in 
Arizona.
    Comment: Because the LAP analysis uses EMU densities instead of 
local densities, it puts New Mexico's small breeding population of bald 
eagles at elevated risk.
    Comment: The LAP criteria should be applied more strictly in the 
context of the Southwestern bald eagle population by either lowering 
the take exceedance thresholds for that population or by making take 
that exceeds the thresholds impermissible instead of merely 
``inadvisable.''
    Response: Application of the LAP analysis as explained in the PEIS 
leads to an eagle density in the Southwestern Bald Eagle EMU of 0.001 
bald eagles per square mile. This translates into a take limit of 1 
individual per year per LAP. A single LAP centered in the middle of the 
breeding distribution of bald eagles in Arizona encompasses most of the 
other occupied breeding territories; thus it is unlikely take of more 
than one to three bald eagles per year could be approved by the Service 
in Arizona without conducting a supplemental NEPA analysis. Similarly, 
in New Mexico, any project that would be predicted to take one or more 
bald eagles per year would require supplemental analysis, and the 
permit request could be denied. The Service's models suggest this level 
of take is well within the sustainable take rate and will not cause 
population declines in Arizona or elsewhere in the Southwest. A final 
point relevant to this comment is that any Service permit for take of 
eagles will specify that the permittee is responsible for complying 
with all applicable state, tribal, and local laws. States have full 
discretion to require more stringent protection for eagles under state 
law.
    Comment: The LAP criteria should be applied more strictly in the 
context of the Sonoran Desert bald eagle population. The Service 
proposes to set a lower take limit for bald eagles in the proposed 
southern Pacific Flyway EMU; however, it appears that the proposed EMU 
includes more populations of eagles than just the Sonoran Desert bald 
eagle. The Service should separately manage the Sonoran Desert bald 
eagle.
    Response: Although we recognize that bald eagles from the Sonoran 
Desert have special significance to many Native American tribes in the 
region, for the purposes of the PEIS and overall management of bald 
eagle incidental take, the Service does not recognize the Sonoran 
Desert bald eagle as a distinct taxon or management unit. We do, 
however, identify bald eagles in the Southwestern United States as a 
separate management unit based on differences in vital rates compared 
to other bald eagle populations. We note that not all of these 
differences are lower; for example, survival of adult bald eagles in 
the Southwest may be higher on average than in the other management 
units. Nevertheless, these differences and a desire to allow for 
continued population growth in the Southwest led the Service to propose 
a lower take rate there than is indicated based on estimated vital 
rates. Also, as noted in response to other comments, the LAP analysis 
would allow very little take per year before additional review would be 
necessary. For these reasons, we believe the selected PEIS alternative 
is adequately protective of bald eagles in the Southwest.
    Comment: With regard to the cumulative effects analysis within an 
LAP, should all potential projects that might cause disturbance be 
treated uniformly? For example, should the first intrusion of 
relatively intensive human activity in close proximity to a natal area 
be treated the same as a project at the outer edge of the natal area?
    Response: In cases where nest disturbance may occur, it is nearly 
always a matter of judgment to predict in advance whether the activity 
will actually constitute disturbance to the degree that take might 
occur (e.g., a nesting attempt is unsuccessful). The Service has 
developed the National Bald Eagle Management Guidelines to help assess 
when a take permit might be advisable, and we are working on similar 
guidance for golden eagles.
    Comment: Some activities are clear candidates for the use of the 
cumulative impacts analysis. It is unclear, however, if all projects in 
the LAP, particularly those which are relatively non-intrusive, should 
be subject to the same cumulative analysis.
    Response: Some form of cumulative effects analysis is required for 
all eagle incidental take permits, and the LAP analysis provides a 
consistent standardized way to conduct those analyses across all 
activities, assuming the effect can be expressed in terms of estimated 
fatalities or decreased productivity.
    Comment: Take thresholds should only apply to unmitigated take. For 
projects adhering to a no net loss standard, no take should be factored 
into the EMU take limit, and if mitigated within the LAP, take should 
also not be factored into the LAP threshold.
    Response: The Service has not proposed to require compensatory 
mitigation except in cases where take limits are exceeded. In cases 
where projected take exceeds the EMU take limit, that projected take 
will not be subtracted from the EMU take limits, because it is offset. 
The take is subtracted from the LAP take limits, however, and if that 
results in the LAP take limit being exceeded, that would trigger 
additional environmental review. That additional environmental review 
would take into account whether the take was offset within the LAP or 
not, and how affects should be reflected in the LAP take accounting.
    Comment: Defining the LAP using natal dispersal distance is a good 
starting metric, but other factors such as proximity to suitable 
habitat and topography should be taken into consideration, and the 
latest information on population genetic differentiation, population 
surveys, and

[[Page 91527]]

telemetry information should be taken into account.
    Comment: We recommend that the Service's analysis includes more 
precise bald eagle LAP data where available. This would ensure that 
permitting decisions are well-aligned with the proposed preservation 
standard, and would be consistent with the Service's commitment to use 
the best available information and practice the best science.
    Comment: It is important to recognize that Alaska contains a wide 
variety of eagle habitats, ranging from temperate rainforests in 
southeast Alaska to boreal forests and tundra in the north, that 
support differing densities of bald eagles. A one-size-fits-all 
management strategy, such as the proposed level of sustainable take for 
LAPs, is not appropriate in an EMU as diverse as Alaska, and thus 
levels of allowable take should not be uniform throughout the state.
    Response: We agree that incorporating fine-scale biological data 
into the LAP analysis is a desirable goal. However, because such 
detailed data are not available for the vast majority of locales where 
incidental take permit applications are desired, it is not practical to 
require this level of detail in LAP analyses at present. Where such 
data are available and would contradict conclusions from the standard 
LAP analysis, they may be considered by the Service, although likely 
after additional NEPA analysis.
    Comment: The goal of simply maintaining the persistence of local 
populations is not sufficient. The LAP objective, like the EMU 
objective, should be ``consistent with the goals of maintaining stable 
or increasing breeding populations.''
    Response: Our analyses suggest the LAP take limit will actually 
allow for additional bald eagle population growth at the LAP scale. All 
golden eagle take will have to be offset at a 1.2 to 1 ratio, though 
the mitigation will not necessarily occur in the same LAP as the take.
    Comment: The Service should not use the overly conservative 90th 
quantile for golden eagles to define the LAP area in order to match the 
median for bald eagles. The area bounded by typical, not extreme, 
movement is necessary to ensure fair analysis of the LAP under the 
proposed rule.
    Response: The natal dispersal value the Service uses to define the 
LAP area for bald eagles is actually the median value for females; in 
bald eagles, as in most raptors, natal dispersal is female-biased 
(females disperse farther than males; Millsap et al. 2015). By adopting 
the median value for female bald eagles, the Service was able to 
capture most of the natal dispersal distribution for males as well. 
Millsap et al. (2015) lacked enough known-sex individuals to compute 
separate estimates of natal dispersal distance for male and female 
golden eagles, and so the Service used an updated 90th quantile for the 
pooled distribution instead. This is explained in Appendix A5 in the 
Status Report.
    Comment: The Service advocates for siting of wind energy facilities 
in areas where impacts to eagles are expected to be low; however, 
siting facilities in low-use areas may inadvertently increase the 
chance that the project is sited in an area that already exceeds the 5% 
LAP take limit, making it more difficult or costly to obtain a permit 
than for a project sited in an area with higher eagle density.
    Response: The Service uses the mean eagle population density for 
all LAPs within an EMU; thus, there is no difference in the LAP 
population calculated for high- or low-density areas with respect to 
the LAP analysis. Thus, this scenario is implausible.
    Comment: Codification of the LAP cumulative effects analysis 
creates an economic burden on companies that have fewer resources.
    Response: Actually, the LAP analysis will likely reduce costs for 
permits. First, the LAP cumulative effects analysis is a relatively 
simple exercise that is conducted by the Service, so no additional 
resources are required from the applicant to conduct the analysis other 
than what would be required otherwise. Second, in cases where the LAP 
analysis is conducted as analyzed in this PEIS, further project-
specific NEPA analyses of the cumulative effects of the activity on 
eagles will not be necessary when projected take is within LAP take 
thresholds, thereby reducing overall costs for prospective permittees.
    Comment: The LAP approach is problematic for long, linear projects 
such as electric transmission lines that may extend hundreds of miles 
or for large utility service areas that contain thousands of miles of 
distribution lines. Calculating and analyzing impacts over multiple 
LAPs for a single transmission line project or utility service area 
would be overly complex and very difficult for both the project 
proponent and the Service, particularly if the lines cross LAPs where 
the 5% cap is already exceeded.
    Comment: The LAP analysis is specific to the wind farm and 
utilities industry. It cannot be fairly applied to real estate projects 
or any other industries.
    Response: The Service has developed a spatial GIS tool that allows 
its biologists to compute the LAP calculations quickly, easily, and 
accurately. The LAP analysis can be applied to any project with borders 
that can be defined, including linear projects. As noted elsewhere, if 
these analyses indicate that take in excess of the 5% limit exists 
within the LAP, more thorough analysis is triggered. It does not 
necessarily mean an eagle incidental take permit cannot be issued.

Mitigation

    Comment: The Service must clarify how proposed compensatory 
mitigation: (1) Would not have occurred in the absence of a specific 
permitting requirement; and (2) does more than require permittees to 
complete actions that a third party is otherwise legally required to 
complete under federal, state, or local law.
    Response: This final rule adopts new language at 50 CFR 
22.26(c)(1)(iii)(D) consistent with DOI policy requiring compensatory 
mitigation to be additional and improve upon the baseline conditions of 
the impacted eagle species in a manner that is demonstrably new and 
would not have occurred without the compensatory mitigation measure. 
Compensatory mitigation must provide benefits beyond those that would 
otherwise have occurred through routine or required practices or 
actions, or obligations required through legal authorities or 
contractual agreements.
    Comment: The concept of requiring mitigation to exceed existing, 
ongoing, or future conservation efforts is speculative and should be 
removed. This concept would remove incentives for applicants to 
participate in voluntary actions promoting eagle conservation, 
especially if no credit is given for these actions.
    Response: We have removed language requiring compensatory 
mitigation to be additional to ``foreseeably expected'' conservation or 
mitigation efforts. In addition, we have added language clarifying that 
voluntary actions to benefit eagles taken prior to permit application 
may be credited towards compensatory mitigation requirements.
    Comment: Clear guidance on how to quantify the level of 
compensatory mitigation that will be required for golden eagle take, 
other than that it will be greater than 1:1, is currently lacking and 
should be provided.
    Response: The preamble to this rule states that compensatory 
mitigation for any authorized take of golden eagles that exceeds take 
thresholds would be designed to ensure that take is offset at

[[Page 91528]]

a 1.2 to 1 mitigation ratio to achieve an outcome consistent with the 
preservation of golden eagles as the result of the permit. We believe 
this baseline mitigation ratio appropriately balances meeting our 
obligations under the Eagle Act with what is reasonable, fair, and 
practicable to permittees.
    Comment: The Service should define what the unit of mitigation is, 
for example, territories, nests, or eagles.
    Response: Impacts of an authorized project and benefits of 
compensatory mitigation are reflected in terms of numbers of eagles. 
For example, disturbance take would be analyzed for its impact on 
breeding success (see Tables 13 and 14 in the Status Report). Habitat 
restoration would be analyzed for its potential benefits to the eagle 
population.
    Comment: Requiring compensatory mitigation at a greater than 1:1 
ratio runs the risk of violating the ``rough proportionality'' 
requirement of the Fifth Amendment's takings clause (U.S. CONST. 
amendment V; Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 
2586, 2596 (2013) (``Extortionate demands for property in the land-use 
permitting context run afoul of the Takings Clause not because they 
take property[,] but because they impermissibly burden the right not to 
have property taken without just compensation.'')). By definition, 
requiring mitigation at a greater than 1:1 ratio will produce 
conservation benefits higher than needed to offset actual impacts. The 
government may ``choose whether and how a permit applicant is required 
to mitigate the impacts of a proposed development, but it may not 
leverage its legitimate interest in mitigation to pursue governmental 
ends that lack an essential nexus and rough proportionality to those 
impacts'' (Id. at 2595 (emphasis added) (There must be a `` `nexus' and 
`rough proportionality' between the property that the government 
demands and the social costs of the applicant's proposal'' (quoting 
Dolan v. City of Tigard, 512 U.S. 374, 391 (1994).))). Also, because 
the unconstitutional conditions doctrines forbids burdening an 
individual's constitutional rights by coercively withholding benefits, 
the Service may not require compensatory mitigation at a greater than 
1:1 ratio in exchange for issuance of a take permit.
    Response: The two cases cited by the commenter are not relevant to 
the offsetting compensatory mitigation requirements in this regulation. 
City of Tigard dealt with a specific regulatory encumbrance on a 
portion of real property for an unrelated public benefit, and Koontz 
dealt with a requirement for a conservation easement that was far in 
excess of what was necessary to mitigate the impacts of the project. 
Even if one could argue those cases are applicable here, the Court in 
City of Tigard developed a ``rough proportionality'' test to determine 
whether a permit approval condition constitutes a taking, as noted by 
the commenter. This regulation requires an offsetting mitigation ratio 
of 1.2 to 1, which, even if it could be considered more than necessary 
to offset the impacts of a project, falls well within the bounds of 
being roughly proportional to the impact being mitigated. The Court in 
City of Tigard held that the regulating entity must make an 
individualized determination that the condition imposed is ``related in 
nature and extent to the impact of the proposed development,'' though 
no precise mathematical calculation is required. Dolan v. City of 
Tigard, 512 U.S. 374, 391 (1994). The Service has clearly explained in 
this final rule that the compensatory mitigation ratio is required to 
ensure that any authorization of golden eagle take is compatible with 
the preservation of golden eagles. The compensation ratio is not a 
generalized public benefit like the one struck down in City of Tigard, 
rather it is an encumbrance tied directly to the purpose of the 
regulations. Thus, this regulation clearly meets the Court's 
requirement by explaining in detail the compensatory mitigation 
requirement and its relation to the predicted impacts of a project and 
whether those impacts are compatible with the preservation of eagles as 
required by the statute.
    Under the Eagle Act, the Service can issue a permit only if it is 
compatible with the preservation of eagles. We have determined that 
authorizing take of golden eagles while imposing compensatory 
mitigation at a 1 to 1 ratio is not sufficient to meet our preservation 
standard at this time. If eagles are not being preserved, one option is 
simply not to authorize take until we can determine how to reduce 
unpermitted take to the point where golden eagle breeding populations 
are stable or increasing. However, a primary purpose of this rule is to 
encourage more sources of unpermitted take to apply for permits and 
implement conservation measures. Rather than imposing a moratorium on 
new permits for golden eagles, we are requiring offsetting compensatory 
mitigation at a 1.2 to 1 ratio. In order to authorize any take of 
golden eagles under these regulations, we must ensure that take is 
compatible with eagle preservation, and because golden eagles currently 
are potentially facing declines, the 1.2 to 1 compensatory mitigation 
ratio appropriately balances compliance with the Eagle Act with not 
unduly burdening recipients of permits.
    Comment: The Service should provide greater details in the rule 
and/or in guidance to clarify the standards for approving compensatory 
mitigation measures. Several commenters promoted the adoption of 
specific mitigation measures including habitat-based conservation 
banks, lead abatement programs, road carcass removal, support for 
rehabilitation centers, and others.
    Response: Quantifying the benefits of various compensatory 
mitigation measures and developing standards for their application in 
permitting is complex. The Service and partners, including industry and 
NGO partners, has already spent considerable time and effort in 
developing additional compensatory mitigation measures with the goal of 
eventually approving their use as effective offsetting compensation. We 
intend to engage stakeholders to develop additional guidance and the 
standards for approving mitigation credits, setting appropriate 
mitigation ratios to address particular mitigation measure 
effectiveness and uncertainty, and establishing appropriate assurances 
for durability of mitigation measures.
    Comment: In-lieu fee programs frequently do not provide meaningful 
compensatory mitigation prior to the onset of impacts.
    Response: Any in-lieu fee program approved by the Service for use 
in eagle permitting must meet the same high, equivalent standards as 
any other mitigation type and must comply with DOI and Service 
mitigation policy. Compensatory mitigation for eagle take is still 
relatively new, with few approved methods. This final rule allows for 
many different types of mitigation to be proposed to allow applicants 
and the Service to expand the options available for providing 
compensatory mitigation, providing all such measures comply with the 
same fundamental standards. The Service will be developing additional 
implementation guidance to further clarify the standards by which we 
would approve particular compensatory mitigation types or measures.
    Comment: Unproven mitigation measures should not be allowed.
    Response: The Service agrees that proposed compensatory mitigation 
measures that have no basis for their effectiveness would not be 
approved. Approval of mitigation measures must be based on the best 
available science. This does not mean that no uncertainties can remain 
for a

[[Page 91529]]

mitigation measure to be approved. Any remaining uncertainties 
regarding the effectiveness of a mitigation measure must be accounted 
for to ensure that eagle take is appropriately offset. The Service 
intends to establish baseline standards for particular mitigation 
measures and involve the public in setting those standards.
    Comment: To expand the breadth of defensible compensatory 
mitigation options, targeted research should be funded as part of the 
compensatory mitigation to facilitate the approval of additional 
effective compensatory mitigation tools. Funding from compensatory 
mitigation should not be directed toward activities that have less 
tangible benefits to eagles such as research, population monitoring, or 
education.
    Response: Research and education, although important to the 
conservation of eagles, are not typically considered compensatory 
mitigation. This is because they do not, by themselves, replace 
impacted resources or adequately compensate for adverse effects to 
species or habitat. In rare circumstances, research and education that 
can be linked directly to threats to the resource and provide a 
quantifiable benefit to the resource may be included as part of a 
mitigation package. These circumstances may include: (1) When the major 
threat to a resource is something other than habitat loss; (2) when the 
Service can reasonably expect the benefits of applying the research or 
education results to more than offset the impacts; or (3) where there 
is an adaptive management approach wherein the results/recommendations 
of the research will then be applied to improve mitigation of the 
impacts of the project or proposal.
    Comment: As written, the regulations equate to a ``first come, 
first served'' standard regardless of the number of eagles taken. 
Because the ``first come, first served'' standard will create 
inequities proportional to the level of take, we recommend establishing 
standardized mitigation for each eagle taken, so that mitigation is 
equitable to the level of take.
    Response: We did consider requiring some level of mitigation for 
all take, whether within the established take limits or not. However, 
we have decided not to require mitigation for take that is within the 
established EMU take limits. For golden eagles, due to their population 
status, the EMU take limits are set at zero, and permits will all 
requiring compensatory mitigation. Given the relatively robust 
population status of bald eagles, and the likely demand for take 
permits, the Service anticipates that bald eagle populations will 
continue to grow without implementation of compensatory mitigation for 
take within the EMU take limits.
    Comment: The Service should not condition eagle take protection for 
an individual project on a permittee acceding to compensatory 
mitigation for unrelated actions by others. Doing so would raise APA 
and due process concerns. Additionally, the Service should clarify that 
no permittee will be required to offset take in excess of take levels 
reasonably attributable to the activities covered in the permit.
    Response: The Service will not impose compensatory mitigation 
requirements on an individual project unless that project, either 
singly or in conjunction with other projects in the same EMU (or 
possibly the same LAP), takes eagles in excess of the take limit. 
Projects removing eagles from the same EMU or LAP are not unrelated in 
terms of the eagle populations they affect, and as such the Service 
maintains it is appropriate and necessary to consider them cumulatively 
in assessing whether compensatory mitigation is necessary or not. If 
compensatory mitigation is required, it will be assessed in proportion 
to the number of eagles estimated to be taken under each permit. For 
golden eagles, permittees will be expected to contribute to reversing 
potential population declines, a necessary action if the Service is to 
allow any additional take of golden eagles and meet the stable 
population objective. Permittees are not expected to carry the full 
burden of offsetting unauthorized take; the Service has and will 
continue to increase enforcement actions against those taking eagles 
illegally so that unauthorized take will be reduced and restitution can 
be obtained.
    Comment: The proposed rule's modification of the preservation 
standard with the goal of achieving a net conservation gain or no net 
loss is premature in light of the Service's agency-wide mitigation 
policy still being in draft form.
    Response: The Service is relying primarily on the standards set 
forth in the Eagle Act, as interpreted by the Service. The Service has 
interpreted ``compatible with the preservation'' of eagles to mean 
consistent with the goal of maintaining or improving breeding 
populations of eagles since 2009. This final rule adopts the following 
definition: ``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 the 
persistence of local populations throughout the geographic range of 
each species.'' We have coordinated the development of these revised 
eagle regulations with development of the Service-wide mitigation 
policy to ensure consistency. In addition, these final regulations are 
in compliance with both Presidential and DOI mitigation policy, which 
have both been finalized.
    Comment: The provisions for compensatory mitigation state that it 
must be based on ``best available science.'' Please provide a 
definition for this term.
    Response: For the purposes of the Eagle Rule, we regard the best 
available science as scientific data that are available to the Service 
and that the Service determines are the most accurate, reliable, and 
relevant for use in a particular action.
    Comment: It is not clear how compensatory mitigation requirements 
will or will not apply to federal and other government entities that 
apply for incidental take permits.
    Response: Federal and other government agencies applying for an 
eagle incidental take permit would have to comply with the compensatory 
mitigation requirements of this rule, consistent with agency 
authorities. The Service understands there may be some circumstances 
where an agency does not have the discretion or available 
appropriations to implement compensatory mitigation and would make 
appropriate accommodations for these circumstances.
    Comment: If a separate, distinct agency action benefits eagles, can 
that action be used or credited towards its compensatory mitigation 
requirements?
    Response: Only actions that meet the additionality standards set 
forth in this rule could be used for compensatory mitigation. 
Compensatory mitigation must be additional and improve upon the 
baseline conditions of the impacted eagle species in a manner that is 
demonstrably new and would not have occurred without the compensatory 
mitigation measure.
    Comment: The payment into conservation banks and in-lieu fee 
programs by a government agency could be problematic and potentially in 
violation of federal appropriations. Consequently, how does the Service 
foresee compensatory mitigation being implemented by permit applicants 
that are federal or state agencies?
    Response: The Service cannot require a government agency to take an 
action outside the scope of its authorities. This rule does not assign 
a preference for any mitigation type. If an agency was

[[Page 91530]]

precluded from participating in an approved third-party mitigation 
program, the agency could implement its own compensatory mitigation.
    Comment: Take should not be authorized above EMU take limits, 
regardless of compensatory mitigation.
    Response: The Service believes that the rigorous standards for 
monitoring and compensatory mitigation in this rule ensure that 
authorized take over EMU take limits will be compatible with the 
preservation of eagles. The Service reserves the right to deny a permit 
if we determine the specific project is not compatible with the 
preservation of eagles.
    Comment: The Service should require compensatory mitigation for all 
authorized take, including take within EMU take limits.
    Response: The Service defines ``compatible with the preservation'' 
of eagles 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 
each species.'' Based on the Service's status review of the two eagle 
species, the Service has determined that the sustainable take rate for 
golden eagles is zero, while the bald eagle population can withstand 
the loss of several thousand individuals and still meet established 
preservation goals. DOI mitigation policy requires that mitigation be 
tiered to achieving landscape-level goals. The Service has determined 
that when take is below modeled sustainable take rates, we can achieve 
our conservation goals for the species without compensatory mitigation. 
By including the persistence of local populations in the preservation 
standard, the Service may also require compensatory mitigation if a 
permittee's action would threaten the persistence of a local 
population.
    Comment: Compensatory mitigation should address project impacts by 
being located in the same LAP as the project impacts.
    Response: Authorized projects may affect both resident and 
migratory individual eagles. Compensatory mitigation for eagle take is 
still in its infancy, and there are currently limited options to 
effectively compensate for the loss of eagles. Further limiting those 
options to the LAP is not practicable to implement at this time. The 
final rule retains the requirement to site within the same EMU where 
the take occurred. This allows the Service to target compensatory 
mitigation to have the greatest benefit to eagles while compensating 
for the impacts of the authorized project in a biologically meaningful 
way. For compensatory mitigation that is required to address concerns 
for a LAP, the Service has a preference for compensatory mitigation 
projects to be sited in the LAP where the impacts occurred. Projects 
that raise concerns over a local population would generally require 
site-specific environmental analysis, including would include 
consideration of where to site compensatory mitigation.
    Comment: Habitat conservation is important for eagles. The Service 
should provide more guidance on how habitat conservation and 
restoration may be used for compensatory mitigation.
    Response: While the current primary limiting factors affecting both 
eagle species are not habitat-based, the condition and availability of 
habitat is an important factor in eagle conservation. The condition and 
availability of habitat will likely be increasingly important in the 
future in light of climate and land-use changes. As with other forms of 
compensatory mitigation, the Service will continue to work with 
stakeholders to develop further guidance on how to structure habitat 
conservation efforts in ways that meet the standards set forth in the 
rule.
    Comment: Compensatory mitigation should be implemented prior to the 
onset of impacts. The Service should allow for flexibility in the 
timing of mitigation, recognizing that not all mitigation can be 
provided prior to impacts.
    Response: Service mitigation policy prefers that compensatory 
mitigation be implemented prior to project impacts. This is important 
to document the effectiveness of the mitigation measure. However, 
requiring compensatory mitigation to be in place prior to project 
impacts is not always practicable. All compensatory mitigation must 
follow the standards set forth in this rule, which are designed to 
ensure that compensatory mitigation is effective and offsets the 
impacts of the authorized take of eagles. If compensatory mitigation is 
implemented after project impacts, then it would have to account for 
temporal loss of the eagles taken, and mitigation ratios would be 
adjusted accordingly.
    Comment: Unauthorized take and violations of the law are a law 
enforcement issue, not a permit issue. Unusually high levels of 
unauthorized eagle mortality within a LAP should not be a trigger for 
compensatory mitigation.
    Response: From a biological perspective, it does not matter whether 
take is authorized or not; both unpermitted and permitted take result 
in mortality, and the effects of that mortality on eagle populations is 
the same. Thus, meeting the Service's management objective of not 
causing the extirpation of local populations requires that we consider 
and take into account existing levels of unpermitted take, and where 
those levels are excessive, to either not issue a permit or to require 
mitigation if we believe mitigation can be effective in offsetting 
additional take in the LAP. The commenter is correct that unpermitted 
take is also a law enforcement issue, and part of the solution lies in 
increased compliance. Towards this end, the Service's Office of Law 
Enforcement has and will continue to prioritize enforcement of illegal 
take of eagles.
    Comment: The Service should not employ a ``practicable'' standard 
when evaluating compensatory mitigation. Compensatory mitigation must 
be designed to effectively offset all authorized take.
    Response: These final regulations better align compensatory 
mitigation requirements with DOI and Service policy. Compensatory 
mitigation is required for remaining unavoidable impacts after all 
appropriate and practicable avoidance and minimization measures have 
been applied.
    Comment: The Service should refrain from establishing an explicit 
preference for use of in-lieu fee programs, mitigation and/or 
conservation banks at this time. The Service should continue working 
with third-party mitigation providers to develop effective mitigation 
programs and policies governed by equivalent mitigation standards.
    Response: This rule does not state a specific preference for 
mitigation type. While there could be advantages to certain mitigation 
types in the future, like an in-lieu fee program targeting mitigation 
actions to maximize benefits to eagles, third-party mitigation options 
are not yet available for mitigating eagle take. This rule clearly 
states that all forms of compensatory mitigation must meet the same 
equivalency standards. More detailed guidance and standards for 
particular mitigation methods will be developed with public input.
    Comment: The Service should consider allowing mitigation proposed 
under existing regulatory mechanisms, such as the U.S. Army Corps of 
Engineers' Clean Water Act section 404 permitting and ESA section 10 
permitting, to be used for eagle mitigation to avoid unnecessary 
duplication among agencies and programs.
    Response: The Service has particular mandates under the Eagle Act 
that differ from requirements under the ESA and U.S. Army Corps of 
Engineers' mandates under the Clean Water Act. To the

[[Page 91531]]

extent that existing mitigation programs meet the standards set forth 
in this rule and future guidance, they could contribute to compensatory 
mitigation for eagles.
    Comment: Tribes are uniquely affected by eagle take permits. The 
Service should look to tribes with the resources and expertise to 
support the management of eagles to host mitigation activities, 
including giving preference for tribal lands for compensatory 
mitigation projects.
    Response: The Service understands and respects that tribes have 
religious and cultural relationships to eagles that are unique, and 
that the Service has government-to-government consultation obligations 
with tribes. The Service values its partnerships with tribes and will 
continue to seek ways to strengthen these partnerships to advance 
wildlife conservation, including eagle conservation. This rule states 
that tribal take of eagles is a higher priority than incidental take 
covered by these revised regulations. Compensatory mitigation for 
eagles is relatively new, and there are currently only limited options 
for permittees. It is not appropriate at this time to further narrow 
the availability of compensatory mitigation projects to any specific 
land ownership, including tribal lands. However, nothing in the rule 
precludes the use of tribal lands as sites for compensatory mitigation, 
and such matters could be appropriate subjects for tribal consultation 
on individual permits that may affect tribal interests.

Miscellaneous--Sec.  22.26

    Comment: With the Service's small staff and shrinking budget, the 
commitment to gathering solid population data for eagles at least every 
6 years may be impossible to meet. Adjusting eagle take permits every 5 
years (whether they are part of a permit given once, or part of a 30-
year permit reexamined every 5 years), particularly based on local 
scale information about eagle populations, is impossible to do if 
population data are not gathered in a consistent, comprehensive way, 
making it impossible for the Service to implement the rules in any 
meaningful way ``consistent with the goal of maintaining stable or 
increasing breeding populations.''
    Response: The schedule of monitoring proposed in the PEIS balances 
available dedicated eagle funding in the Service with the technical and 
logistical demands of eagle monitoring. Under this schedule, eagle 
monitoring will be conducted annually (not once every 6 years as 
implied by the comment), but the three major eagle surveys (golden 
eagle summer, golden eagle winter, bald eagle summer) will be conducted 
in rotation once each, every 3 years, with reassessments and updates of 
status every 6 years.
    Comment: The Service misapplies the term ``take'' to include 
injuries or mortalities caused by accidental collisions with wind 
turbines, since such a statutory construction is inconsistent with the 
statute's required mens rea, and generally ``would offend reason and 
common sense'' See United States v. FMC Corp., 572 F.2d. 902 (2d Cir. 
1978).
    Response: Operating turbines that incidentally (accidentally) take 
or kill migratory birds is a violation of the MBTA and the Eagle Act. 
Collisions with wind turbines are foreseeable and can be avoided, 
minimized, or mitigated for with the proper implementation of 
conservation measures. The Second Circuit Court of Appeals in the 
United States v. FMC Corp. decision cited by the commenter, along with 
most other courts, interpreted the MBTA to be a strict liability crime 
for misdemeanor violations, which means no mens rea (mental state) is 
required to determine guilt See 572 F.2d at 905-08. The United States 
v. FMC Corp. case dealt specifically with violations of the MBTA and 
not the Eagle Act, although eagles are also protected by the MBTA. 
Similar to the MBTA, the Eagle Act requires no mens rea for certain 
violations, including those that incidental take would fall under. See 
16 U.S.C. 668(b).
    Courts have concluded that, under strict liability, incidental take 
caused by many different activities violates the MBTA See, e.g., FMC 
Corp. (hazardous wastewater pond); United States v. Corbin Farm Serv., 
444 F. Supp. 510 (E.D. Cal. 1978) (improper pesticide use); United 
States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070 (D. Col. 1999) 
(power line electrocution and collisions); Ctr. for Biological 
Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002) (U.S. Navy 
military training activities); United States v. Apollo Energies, Inc., 
611 F.3d 679 (10th Cir. 2010) (oil extraction equipment). But cf. 
United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) 
(oil waste water facilities, but based on the conclusion that the MBTA 
was primarily enacted to regulate hunting and poaching). Recently, 
courts have reached similar conclusions with regard to wind-energy 
operations See, e.g., Pub. Employees for Envtl. Responsibility v. 
Hopper, 827 F.3d 1077, 1088 n.11 (D.C. Cir. 2016). There is no reason 
to conclude that courts would reach different conclusions for 
incidental take of eagles under the Eagle Act.
    Comment: The revised 30-year eagle rule will allow wind energy 
facilities to cumulatively kill up to 4,200 bald eagles and 2,000 
golden eagles annually with no prosecution.
    Response: This brief and widely publicized statement distorts the 
actual facts about the proposed rule in at least four ways. First, it 
simply ignores the existence of the permitting process and implies the 
Service will ignore violations by wind companies. Second, the numbers 
presented for bald eagles are in reality the amount of take that the 
Service estimates could occur without resulting in a population decline 
(and the actual number is likely significantly higher; this is a 
conservative estimate that errs on the side of protection). The numbers 
do not represent the level of take the Service anticipates authorizing 
under permits. Third, mention of allowable take of 2,000 golden eagles 
is completely without basis; the take level for golden eagles is set at 
zero without offsetting compensatory mitigation. Finally, the estimated 
sustainable take limits are not allotted to the wind energy industry; 
the Service issues permits to homeowners and other individuals; local, 
state, tribal, and federal agencies; and many types of businesses. In 
fact, the majority of permits that have been issued under the 2009 
regulations have been for temporary disturbance or removal of inactive 
nests for safety purposes.
    Comment: The Service does not adequately enforce the Eagle Act when 
it comes to wind power. Companies, therefore, are not deterred from 
constructing projects in essential habitats of eagles and other 
migratory birds. Without increased enforcement, there is no reason to 
assume the new regulations will lead to any greater degree of 
compliance.
    Response: Eagle take is prohibited by law, and violations may be 
prosecuted criminally or through civil enforcement authorities. Which 
type of enforcement is used depends upon the facts of each situation, 
including the conduct of a wind energy company in siting and operating 
wind projects. The Service and the U.S. DOJ have taken enforcement 
action where and when warranted and will continue to do so. In the last 
18 months, the Service has resolved five civil enforcement actions 
concerning unauthorized incidental take of eagles at wind facilities. 
However, when investigations are ongoing, information about them is not 
released to the public. It is understandable that the public is unaware 
of the enforcement actions being pursued by

[[Page 91532]]

the Service's Office of Law Enforcement. When investigations are 
ongoing, information about them is not released to the public, or even 
to other Service programs, until cases are resolved. In this case, the 
commenter's statement is just wrong. In fact, just in the last 18 
months, the Service has resolved four civil enforcement actions against 
wind companies. Taken together, the four civil settlements reached over 
the last 18 months have addressed legacy and interim eagle take at 15 
different wind-energy facilities, resulting in 10 additional wind 
energy facilities applying for eagle take permits (5 had applied for 
permits at the time settlement discussions commenced) and commitments 
by the wind energy facilities to spend a minimum of $1,855,000 over the 
next 3 years on research and development of avian detection and 
deterrent technologies and to pay $55,000 in civil penalties.
    Comment: The Service should consider an approach to ensure 
permitting and siting regulations are properly followed. In Osage 
County, Oklahoma, although injunctions were granted at the federal 
level against construction of wind turbine projects, lack of 
enforcement meant construction continued without interference. The 
Service must clarify and strengthen its approach for instances where 
eagle permitting regulations are not followed by energy developers or 
others.
    Response: The Eagle Act does not directly regulate otherwise legal 
activities that may result in the take of an eagle or eagles. Specific 
effects of otherwise lawful activities, including construction and 
operation of wind facilities, can constitute actions that are 
prohibited under the Eagle Act, such as disturbance, injury, or killing 
of eagles. The permit authorization is for the otherwise-prohibited 
take, which is usually directly caused by the operation of the project. 
The eagle permit does not authorize the construction of the facility 
itself.
    An injunction is an order issued by a court requiring a person to 
do or cease doing a specific action. An injunction is considered to be 
an extraordinary remedy and is available only in special cases where 
the injunction is necessary to preserve the status quo or to require 
some specific action in order to prevent irreparable injury or damages 
that cannot adequately be remedied. The Service is not aware of any 
injunctions currently in effect ordering any wind energy company to 
cease taking eagles in Oklahoma. The injunction the commenter refers to 
may be related to federal cases involving the potential intrusion of 
subsurface mineral rights by construction of wind-turbine foundations 
at a facility constructed in Osage County, Oklahoma. The cases did not 
relate to eagles and construction continued because the cases were 
resolved in favor of the wind company.
    Comment: The Service has the ability to regulate the wind industry, 
including influencing siting. For example, if the Service recommended 
that a project not be placed at a particular site due to high risks to 
federally protected species, but the developer ignored the 
recommendation or failed to obtain appropriate permits, then the 
Service could subject that facility to enhanced scrutiny, including 
independent monitoring of fatalities and/or unannounced visits by law 
enforcement. The developer could also be warned that, if protected 
species are killed, the Service will refer the case to the Justice 
Department and request prosecution to the greatest extent of the law, 
including the possibility of temporary or permanent shut down.
    Comment: Proper siting for wind energy projects and adequate 
protection for eagles and migratory birds must take a higher priority. 
There should be no siting of wind turbines in eagle breeding, nesting, 
and migratory areas under any circumstances. While more stringent and 
responsible guidelines on proper siting may be more difficult and 
costly, we contend that this is an instance where the federal 
government and the Service must stand firm and defend our eagle 
populations.
    Comment: The Service is wrong in asserting that it lacks any 
authority to ``prohibit development in areas that are important to 
eagles,'' and that the most it can do, is ``recommend'' that a company 
not build its project in a high-risk site. 18 U.S.C. 371 makes it a 
crime for any person to conspire ``to commit any offense against the 
United States.'' The government has relied on this provision to 
prosecute not only actual ``takings'' in violation of federal wildlife 
protection laws, but also the predicate actions necessary to bring such 
takings to fruition. The government need not wait until the actual 
taking of an eagle, but may undertake appropriate enforcement action to 
prevent harm to protected wildlife before it occurs.
    Response: The Service has been consistent with our message that we 
focus our resources on investigating and prosecuting individuals and 
companies that take migratory birds, including eagles, without 
identifying and implementing all reasonable, prudent, and effective 
measures to avoid that take. Companies are encouraged to work closely 
with the Service to identify available protective measures in their 
avian protection plans when developing project plans, and to implement 
those measures prior to/during and after construction and operation, 
including during the siting process. However, if a wind company ignores 
our advice and develops a project in an area that results in the take 
of eagles or concerning numbers of other migratory birds or federally 
protected bats, we can and do investigate and, if appropriate, pursue 
appropriate enforcement action. The Service and DOJ have taken 
enforcement action where and when warranted using the enforcement 
authorities available to them and will continue to do so.
    Comment: How is the Service going to find out if protected species 
have been taken since it relies solely on the regulated industry to 
volunteer that they have broken the law? The wind energy industry 
(which is already paying for their own studies) should contribute to a 
fund that the Service will use to hire independent experts to conduct 
pre-construction risk studies and post-construction bird and bat 
mortality studies.
    Response: We agree that independent third parties reporting 
directly to the Service should monitor take under long-term permits, 
and we have incorporated this requirement into the final regulations.
    Comment: The regulations should include a requirement that all 
baseline and post-construction data on wildlife will be made fully 
available to the public as soon as possible. Lack of transparency is a 
pervasive problem. Reports of baseline studies and of impacts 
monitoring at wind projects are increasingly kept confidential. These 
data pertain to public trust resources, and should not be kept 
confidential.
    Comment: The Service should establish mechanisms to automatically 
provide all data and reports, including raw data collected on-site, to 
the public in real-time and as soon as it is available.
    Comment: The Service should require that all monitoring data 
(reports and raw monitoring data) be submitted electronically to a 
publicly available database. Federal agencies are moving towards 
electronic reporting as evidenced by the Environmental Protection 
Agency's (EPA's) ``Next Generation Compliance'' initiative. The Service 
should develop a public electronic portal/database from which it can 
track permit compliance, authorize take across populations, and publish 
proposed and final permitting decisions. This portal would allow 
stakeholders and regulators to quickly search permits and quickly 
access all available

[[Page 91533]]

monitoring reports and 5-year reviews. This approach would not only 
facilitate transparency but also provide a valuable tool for its staff 
to track permit compliance.''
    Response: The permit regulations already contained the provision 
that all mortality data will be available to the public prior to this 
rulemaking. We will post cumulative reported mortality data that is 
summarized to a state and flyway level on a Web site that can be viewed 
by the general public. We will consider posting pre-construction (or 
pre-permitting) data that we require as part of the permit application 
for projects that receive eagle take permits.
    Comment: The proposed rule is focused on eagle breeding 
populations; however, the eagles killed in wind resource areas are not 
necessarily participants in breeding populations at the times of their 
deaths.
    Response: The proposed rule did not focus on breeding populations, 
and in fact one aspect of the proposal, to adopt Flyways rather than 
maintain the current EMUs, was introduced to better account for non-
breeding season movements. The Service's population size estimates, 
sustainable take rate estimates, and take limits all apply to eagles 
across all age classes, both sexes, and throughout the year. Even the 
LAP analysis, which does focus heavily on breeding eagle densities, is 
not intended to only be protective of breeding populations, as 
explained in the Status Report on page 27.
    Comment: The Service should provide more clarity and transparency 
concerning data collected concerning causes of eagle mortality in the 
United States. As the agency responsible for the National Eagle 
Repository (NER), the Service is in a unique position to obtain, track, 
and disclose data surrounding eagles being sent to the repository. 
Disclosure of these data would provide a necessary starting point to 
check the accuracy of Service priorities regarding eagle mortality in 
the United States.
    Comment: Tribes should have access to eagle injury and death 
reporting related to their historic reservation areas to provide for 
better collaboration regarding eagle incidents. Eagle injury and death 
incidents should be coordinated with tribal eagle research facilities 
as a collaborative measure to ensure improved data and research related 
to wind turbine impacts.
    Response: The Service is in the process of developing a database to 
centralize and grow the dataset on injury and mortality incidents 
involving eagles and other birds across the nation. This will include 
data on any eagles recovered by, reported to, or delivered to the 
Service and/or any partners who data share with the Service, and will 
include eagles that go on to be sent to the NER. The database is still 
being populated with a number of historical records and prepared for 
use by others outside of the Service, but is anticipated to be fully 
functional by the end of 2017. Once the database is populated and fully 
operational, we do anticipate that some level of information will be 
made publicly available, along with information on the role these data 
play in helping the agency address and research impacts to eagles and 
other birds. It is important to note that the Service will not be 
depending solely on the data collected in this database to accurately 
depict the relative causes of eagle and other bird mortality across the 
landscape. While some of the data collected in the database should help 
to inform these questions, there are targeted, structured studies that 
are more useful for this purpose. A list summarizing these studies is 
available upon request, but a good example is a study the Service is 
conducting that involves using the fates of a sample of satellite-
tagged eagles to estimate the importance of different mortality 
factors, as described in the Status Report. We note that many Native 
American tribes have been active participants and collaborators in that 
study, and that collaboration has greatly improved the extent and 
scientific quality of the findings.
    Comments: The Service has stated that: ``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 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.'' That statement strongly suggests that the Service will 
accede to the wishes of companies that desire to shield from the public 
their impacts on public trust resources--which is hardly consistent 
with the purposes of the Eagle Act, MBTA, or FOIA. Any wind energy 
company could declare that disclosure of eagle kill data could hurt its 
bottom line or is somehow ``confidential'' business information, with 
the result that virtually all eagle mortality data will likely continue 
to remain unavailable to the public and concerned conservation 
organizations.
    Response: Under the FOIA's Exemption 4, the Service independently 
determines whether submitted data is commercial information not subject 
to disclosure (confidential business information), whether or not it is 
marked as such by the submitter. A submitter cannot simply insulate 
information from disclosure under FOIA by marking it as privileged or 
confidential and expect the Service to accede without an independent 
analysis. Also, there is a distinction between ``voluntarily 
submitted'' records and records that are required to be submitted, and 
in the language quoted by the commenter, we were talking about other 
birds in addition to eagles. Under eagle take permits, submission of 
eagle mortality information is not voluntary, and our regulations, both 
current and those made final with this rule, require data on permitted 
eagle mortality to be publicly available.
    Comment: While tribal members are required to apply for and receive 
individual permits from the Service to even possess eagle feather or 
parts--despite the Constitutional rights and religious freedoms of 
tribal people that have long been acknowledged in the law--the Service 
intends to issue permits for lethal take of eagles to the wind industry 
for up to a 30-year term, not to protect eagles as the Service now 
suggests, but rather to facilitate a purely commercial activity by wind 
developers. The requirement that permits for traditional religious use 
of tribal members be renewed annually imposes administrative and cost 
burdens on the practice of religion, as well as on the Service's 
limited resources. The Service should consider issuing take permits for 
Native American religious use in perpetuity, or at a minimum for the 
30-year term the Service proposes for non-religious incidental take. 
The inequities between the durations of these two permits warrant 
staying the final incidental take permit regulations until the Service 
can address this very serious question.
    Response: We are aware that the 1-year permit duration for permits 
to take eagles for religious use may impose an unnecessary burden on 
some tribes, and we are considering revisions to those permit 
regulations to address a variety of issues, including the permit 
duration. We will consult with tribal governments before proposing any 
revisions.
    Comment: The proposal lacks meaningful or specific guidance as to 
how the Service will conduct tribal consultation with potentially 
affected

[[Page 91534]]

Indian tribes on a project-by-project basis when the Service receives 
permit applications. There is no assurance the Service will engage in 
proper consultation with affected Indian tribes. Tribes are likely to 
be cut out of the permitting process, depriving the Service of valuable 
traditional ecological knowledge and tribal data about the historic and 
current presence of eagles in the area.
    Response: Where issuance of a permit has the potential to affect 
Native American tribes, we will notify the potentially affected tribes 
and provide them with the opportunity to consult. If tribes have 
valuable traditional ecological knowledge they will share, we will 
welcome that information. The Service relies on a numerous guidance 
documents to inform how it consults with tribes, including Executive 
Orders; Presidential memoranda; DOI Secretary's Orders; and policies of 
the DOJ, DOI, and the Service. We do not see any advantage to tribes of 
incorporating all this guidance into the eagle permit regulations, and 
the result would be either a repetition of information already provided 
or a summarized (and, therefore, more generalized and less helpful) 
version of the existing authorities and guidance. Further, as with any 
federal action warranting tribal consultation, the specific 
circumstances of the actions will affect the process and parameters of 
the consultations. Additionally, individual tribes have different 
preferences for how they wish the consultation process to proceed. For 
all these reasons, we did not address specific protocols for 
consultation with tribes.
    Comment: The Service should mandate that each permit application 
identify affected tribes in the requisite eagle conservation plan. 
Consultation with tribes should occur at every stage of the permitting 
process. The regulations should ensure that affected tribes receive 
notice by sending a copy of each eagle take permit application to 
tribes. If this is not feasible due to legal, confidentiality, or other 
concerns, tribes should at least receive notice of an application and 
information necessary to allow for effective and meaningful 
consultation. Also, affected tribes should be included in the NEPA 
analysis of each permit. To ensure increased participation and input by 
tribes in the NEPA process, affected tribes should be invited to serve 
as cooperating agencies under NEPA. Further, the Service should send a 
copy of an eagle take permit to all affected tribes upon the issuance 
of that permit.
    Comment: Tribes that will be affected by eagle take authorized 
under a particular permit must be identified and contacted to 
facilitate participation in the permit decision-making process. The 
Service should cast the widest net possible to identify affected 
tribes, which the regulations should broadly define to include: (1) All 
tribes with an interest in eagles in the vicinity of a wind energy 
project; or (2) all tribes that may have interest in eagles within the 
relevant flyway.
    Response: We maintain our commitment to consulting with interested 
tribes as early as possible in the permitting process when issuance or 
review of individual permits may affect a tribe's traditional 
activities, practices, or beliefs. We do not think it is appropriate to 
require a permit applicant to identify potentially affected tribes. 
Instead, it is incumbent on the Service to make that determination. 
Thus, we will continue to rely on our trust relationship and open 
communication with each federally recognized tribe to help us determine 
when a project may affect tribal interests. Because of the myriad 
differences in the interests of federally recognized tribes regarding 
eagles, we do not find it appropriate to limit or circumscribe 
consultation with individual tribes by outlining a more specific 
framework for the consultation process. Each consultation will depend 
on the specific needs and concerns of the affected tribe. In some 
cases, it may be appropriate to consult with a tribe regarding its 
interest in projects occurring in a region or flyway. In other cases, 
it may be appropriate for a tribe to act as a cooperating agency for 
the NEPA process for an eagle permit. Regardless of any consultation 
process, the effects of an eagle permit on tribal cultural, religious, 
or socioeconomic interests will be analyzed in the appropriate NEPA 
document for that permit.
    Comment: The Service should clarify that projects that attempted in 
good faith to comply with eagle take regulations, especially those that 
also applied for permits but were unable to obtain a permit due to 
difficulties inherent in the current permit program, should not be 
required to undergo additional mitigation prior to being issued a take 
permit under the new regulations. Consistent with the template eagle 
settlement agreement framework, the Service should clarify in the eagle 
permit program that not all such projects will need to enter into a 
settlement agreement prior to being granted a permit; instead, the 
Service will, in determining whether prior unpermitted take requires 
any additional actions, take into consideration the nature, 
circumstances, extent, and gravity of the acts with respect to the 
degree of culpability and cooperation, history of noncompliance, levels 
of past take, and efforts to reduce take.
    Comment: The proposed rule implies that applicants would need to 
take corrective actions and/or make payments for all takes over the 
life of the project, which, for transmission line providers, may have 
been in operation since the early 1900s. It is unreasonable and 
ineffective to require that those seeking a voluntary permit must 
``settle up.'' Voluntary applicants would then need to incriminate 
themselves to obtain an eagle permit, creating a strong disincentive to 
seek permits.
    Comment: The Service should reconsider its position that applicants 
may be required to address past take by entering a settlement 
agreement; why does historic take need to be taken into account now 
considering that take occurring prior to 2009 is already reflected in 
the bald and golden eagle population status?
    Response: A permit can be issued without resolving unauthorized 
past eagle take; however, the applicant continues to be subject to an 
enforcement action at any time for unpermitted prior take of eagles. 
Such decisions will be made on a case-by-case basis considering the 
totality of the circumstances. Project proponents have been encouraged 
to consult with the Service early and often to avoid and mitigate 
migratory bird and eagle take to the extent practicable, and to apply 
for an eagle take permit where take cannot be avoided. The Service's 
goal has been to work closely with project developers to ensure 
unlawful (unpermitted) take does not occur. However, many entities have 
chosen to avoid the Service's involvement all together, or only engage 
with the Service after eagles were killed and a law enforcement 
investigation began. A determination by the Service whether to pursue 
criminal or civil enforcement of prohibited eagle take and, if so, 
whether it is appropriate to resolve any such enforcement through a 
settlement will consider the conduct of a company in siting and 
operating projects. Settlement agreements may be appropriate under 
either the criminal or civil provisions of the Eagle Act. Finally, in 
response to the last comment, the statute of limitations for criminal 
and civil enforcement actions is five years and we would not expect 
enforcement of take prior to 2009.
    Comment: In the original 2009 rulemaking, existing projects were

[[Page 91535]]

considered part of the baseline and were not required to implement any 
additional mitigation requirement for take when obtaining a permit. The 
Service should consider a similar approach here for existing projects 
that have already invested significant resources in their projects and 
are meeting the recommended measures outlined in the Wind Energy 
Guidelines (WEG) and ECPG. Similar to the analysis for historical 
tribal take for religious use, the Service should acknowledge that take 
from existing infrastructure is part of the baseline. Authorization of 
such take should not affect take limits established by the Service. 
Many existing power line retrofit programs are improving the baseline 
condition by reducing mortalities.
    Response: Ongoing incidental take that has been occurring on a 
relatively steady basis since before 2009 is part of the baseline and 
therefore does not require offsetting compensatory mitigation. The 
Service will take into consideration the conservation measures already 
in place in developing permit conditions for these sources of take.
    Comment: We agree with the Service's decision to decline to require 
the following measures at wind energy projects: Increase in frequency 
of turbine site inspection to search for physical evidence of 
mortality/injury event; development and employment of video 
surveillance and other technologies (impact alarms); and/or providing 
onsite personnel to facilitate monitoring of larger wind farms. These 
practices are clearly not demonstrated, effective best management 
practices.
    Response: We appreciate this opportunity to clarify our position. 
We have not made any final decisions about the use of such measures; we 
merely noted that they have not yet been shown to be effective.
    Comment: The standard language on permits stating that the 
authorization granted is not valid unless the permittee is in 
compliance with all other federal, tribal, state, and local laws and 
regulations is concerning. The language creates the result that some 
federal permits could be of little value due to state restrictions on 
issuing incidental take permits for ``fully protected'' species, such 
as in California. The Service should consider alternative language that 
would state that the applicant is responsible for ensuring compliance 
with other federal, state, and local law.
    Comment: Entities seeking a federal permit to take bald or golden 
eagles may not be able to obtain a state-level permit to be in 
compliance with state laws. This could potentially put the state fish 
and wildlife agencies in the position of holding up the issuance of a 
federal permit or revocation of a permit, due to the lack of authority 
or ability to issue a state-level permit. The regulations should be 
revised to include a framework or pathway within the permit structure 
that requires coordination between the Service region, the state fish 
and wildlife agency, and the applicant to discuss issuance of any state 
permits. This will be imperative in states where there is no authority 
or process to issue a state-level permit to reduce the potential 
conflict between the state agency and the permit applicant.
    Comment: The provision that permits can be issued to or valid only 
for ``otherwise lawful'' activities should be removed. It is built into 
the ESA statutory language, but is not present in the Eagle Act. The 
concept under both ESA programs and the Eagle Act has been misconstrued 
and inappropriately applied. Specifically, it can cause confusion, 
leading to delays and to occasional litigation over permit processing 
and issuance.
    Response: We have revised the language that said the federal Eagle 
Act authorization is not valid if a permittee is not in compliance with 
the laws and regulations of other jurisdictions. The new language 
states: ``You are responsible for ensuring that the permitted activity 
is in compliance with all Federal, tribal, State, and local laws and 
regulations applicable to eagles'' (Sec.  22.26(c)(11)). When seeking a 
federal permit, persons should do their due diligence to determine 
whether bald and golden eagles are protected under other laws and 
whether their action may require additional authorizations. We will 
defer to state, tribal, and local authorities' interpretation of their 
own laws and regulations and will continue to work closely with those 
entities in providing any requested assistance in enforcing non-federal 
laws and regulations.
    Comment: The timeframes associated with processing a permit 
application were initially underestimated. Only one eagle permit has 
been issued by the Service at the time of this letter. The final 
regulations should contain processing timeframes.
    Response: The Service has issued over 400 permits under the 2009 
permit regulations. The false assertion that we have issued only one 
permit has been made repeatedly by one industry for which we have 
issued only one permit. We are not including permit issuance timeframes 
in the regulations because the time it takes to issue a permit varies 
enormously depending on the scale and complexity of the activity that 
will result in take, the need to prepare an analysis under NEPA, the 
quality and completeness of the data and other information provided by 
the applicant, and many other factors.
    Comment: We recommend more realistic penalties for violations be 
instituted. The Service should review and address enforcement actions 
and measures in the context of eagle take violations (under both the 
MBTA and the Eagle Act). Presently, it appears that resources are 
inadequate for enforcement in the field, as well as a reticence for the 
Service and the courts to prosecute violators.
    Response: The Service, as part of DOI, is an agency in the 
Executive Branch of government. Civil and criminal penalties tied to 
federal laws are set in statute and those statutes are set by the 
Legislative Branch of government (Congress). However, in 2015 Congress 
mandated that federal agencies update penalties for civil violations of 
statutes they are responsible for enforcing. The Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 requires 
agencies to adjust the level of civil monetary penalties and to make 
subsequent annual adjustments for inflation. See Public Law 114-74, 
701, 129 Stat. 584. The Service subsequently updated civil penalty 
amounts for all statutes it enforces, including the Eagle Act. See 81 
FR 41862 (June 28, 2016). The maximum civil penalty under the Eagle Act 
increased from $5,000 to $12,500 for any violation occurring after July 
28, 2016, and the new penalty will be adjusted annually for inflation. 
See 50 CFR 11.33 & 16 U.S.C. 668(b).
    When issues of take are brought to the attention of the Service, 
they become an investigative priority for the Service. If it appears 
that the take violated federal law, the results of the investigation 
are brought to the attention of either the DOJ or DOI's Office of the 
Solicitor, for review and criminal or civil prosecution. The DOJ 
decides, in consultation with the Service and the Office of the 
Solicitor, whether or not to prosecute violations of federal law.
    Comment: In the proposed rule, the Service provided a response to 
comments that implies requiring a Bird and Bat Conservation Strategy 
(BBCS) is consistent with its regulations: A BBCS is a vehicle created 
by the 2012 land-based WEG. Requiring a BBCS contradicts the voluntary 
nature of the WEG, and also contradicts the WEG-created concept of the 
BBCS. The Service should clarify in the preamble

[[Page 91536]]

to the final rule that a BBCS (or collection of documents that serve 
the function of a BBCS) is voluntary.
    Response: Preparation of a BBCS is voluntary under the WEG. 
Preparation of an eagle conservation plan is voluntary under the ECPG. 
Neither the WEG nor the ECPG confers the take authorization necessary 
to shield an entity from enforcement for prohibited take under the 
Eagle Act. A permit is the necessary mechanism to confer the 
authorization needed to take eagles, and permits require avoidance and 
minimization measures. Some applications for eagle permits (e.g., for 
most wind energy facilities and other projects that are large-scale and 
have the potential for significant or ongoing impacts) will require 
essentially all the information and commitments that are generally 
found in a BBCS. In those cases, the compilation of information 
submitted need not be referred to as a ``Bird and Bat Conservation 
Strategy'' (particularly if take of bats is not likely) or an eagle 
conservation plan, but whatever it is called does not change the 
requirement that certain information necessary for the Service to 
determine that the applicant will undertake appropriate avoidance and 
minimization measures must be submitted by the applicant.
    Comment: The Service should clearly define for its staff that the 
scope of the NEPA analysis should only include an analysis of the 
environmental effects of the issuance of an eagle permit and its 
associated effects. As applying for the permit is voluntary, the 
general siting, construction, and operation of a project should fall 
outside of the typical NEPA analysis.
    Response: We agree that the scope of the NEPA analysis should 
include only an analysis of the environmental effects of the issuance 
of an eagle permit and its associated effects, including the effects of 
mitigation measures. Because nearly all of the environmental impacts 
associated with issuance of an eagle permit relate to eagles, the 
analysis already included for these species should already be covered 
by the PEIS for the majority of permits. Among the exceptions would be 
most cases where the 5% LAP take limit is exceeded and whenever there 
exist extraordinary circumstances that require an exception to a 
categorical exclusion as defined under NEPA. As such, any project-
specific NEPA analysis should truly be circumscribed, as a majority of 
the necessary analysis has already been covered. The impacts of 
construction and operation may be part of the impacts analysis to the 
degree that the permit covers the effects of those activities, 
including the mitigation for the permit. Thus, the environmental 
effects of any permit conditions and any modifications to the proposed 
construction or operation of the project triggered by the permit review 
and issuance process should be analyzed as part of the NEPA process. We 
also note that, although applying for a permit is voluntary in nature, 
take of federally protected species such as eagles is a violation of 
federal law unless that take has been authorized under a permit or 
regulation.
    Comment: The Service invokes the Eagle Act statutory language that 
refers to the ``protection of . . . other interests in any particular 
locality'' as the foundation for its proposed regulation. However, 
promotion of a national renewable energy industry is not an 
``interest'' that relates to a ``particular locality.''
    Response: The fact that the permit program overall may enhance a 
national interest does not mean it violates the Eagle Act. Individual 
permits are not being issued to a national interest. As a comparison, 
preservation of eagles is also a national interest, and we can issue a 
permit that would benefit eagles in any particularly locality. In fact, 
a specific town, city, county, or set of coordinates at which one or 
more wind turbines is located would constitute a ``locality,'' which 
accurately reflects the scale at which the Service issues individual 
permits.
    Comment: The language relating to ``resource development and 
recovery operations'' indicates that, to the extent Congress considered 
that the Service could use incidental take permits issued under the 
Eagle Act as a tool to promote a national industry, the agency's 
authority to issue them is specifically limited to ``the taking of 
golden eagle nests.''
    Response: This comment confuses two different provisions of the 
Eagle Act that were established by Congress in separate amendments to 
the Act, one in 1962 (``for the protection . . . of agricultural or 
other interests in any particular locality'' (Pub. L. 87-884, October 
24, 1962)), and one in 1978 (``the Secretary of the Interior, pursuant 
to such regulations as [s]he may prescribe, may permit the taking of 
golden eagle nests which interfere with resource development or 
recovery operations'' (Pub. L. 95-616, November 8, 1978)). The two 
clauses provide the Secretary authority to issue permits for different 
activities and are separated by multiple clauses addressing separate 
types of entities and interests that may receive permits.
    Comment: The proposed regulation is inconsistent with the 1916 
convention with Canada aimed at conservation of migratory birds and its 
1995 protocol (``U.S.-Canada Convention''). Article II.3 of the 
Convention specifies that ``the taking of migratory birds may be 
allowed at any time of the year for scientific, educational, 
propagative, or other specific purposes consistent with the 
conservation principles of th[e] Convention.'' However, the rule is not 
aimed at advancing ``scientific,'' ``educational,'' or ``propagative'' 
purposes. Also, none of the conservation principles listed in the 
Convention includes promotion of wind energy or any efforts aimed at 
addressing climate change.
    Response: This regulation does not ``promote'' wind energy; it sets 
forth a suite of new and amended provisions to increase protection of 
eagles and streamline the permitting process to encourage any project 
proponent that may take eagles to apply for permits and thereby 
implement conservation measures to reduce and offset projected take of 
eagles that otherwise would not be implemented. The regulatory 
amendments are consistent with the preservation of eagles under the 
Eagle Act, which is a standard that potentially provides more 
protection to eagles than the MBTA or any of its underlying treaties. 
Moreover, the Canada Convention does not prohibit the Service from 
authorizing incidental take of eagles or other migratory birds by 
industrial activities. As an initial matter, the Canada Convention 
itself does not include eagles in the list of bird species and families 
it applies to; the treaty with Mexico covers the avian family that 
includes eagles, and the treaty with Russia specifically includes bald 
and golden eagles. Second, as the commenter notes, the Canada 
Convention, as amended by the 1995 protocol, authorizes the parties to 
allow the taking of migratory birds for ``other specific purposes 
consistent with the conservation principles of this Convention.'' The 
1995 protocol called for a comprehensive approach to the conservation 
and management of migratory birds, outlining several conservation 
principles and the means to pursue those principles, including 
monitoring, regulation, and enforcement. See Article II. Several court 
cases have confirmed the Service's authority to regulate and enforce 
the MBTA's take prohibitions in the context of incidental take (see, 
e.g., United States v. FMC Corp., 572 F.2d 902 (2d. Cir. 1978) (holding 
that it is appropriate for the Service to use enforcement

[[Page 91537]]

discretion to police activities that incidentally take migratory 
birds); Publ. Employees for Envtl. Responsibility v. Hopper, 827 F.3d 
1077, 1088, n. 11 (D.C. Cir. 2016) (noting that an offshore wind 
facility could apply for a permit to cover its activities likely to 
cause incidental take)). Third, Congress enacted legislation directing 
the Service to specifically authorize incidental take caused by 
military readiness activities, signifying that Congress both 
interpreted the MBTA to otherwise prohibit incidental take and viewed 
the incidental take authorization as consistent with the underlying 
treaties. See Public Law 107-314, 315, 116 Stat. 2458 (2002); and 50 
CFR 21.15.
    Comment: If the Service actually believes any additional 
anthropogenic mortality cannot be sustained by golden eagles, how can 
they presently be giving out a permit for the take of 40 nestlings by 
the Zuni Tribe? The Zuni Tribe has been getting a permit since 1987; 
that is a long track record of very local mortality.
    Response: The permit referenced by this commenter is actually 
issued to the Hopi, not the Zuni, Tribe. Region 2 of the Service has 
fully analyzed the effects of this permit in an April 2013 
environmental assessment (U.S. Fish and Wildlife Service 2013b). That 
document found the actual take, which averages around 23 annually, is 
biologically sustainable under the Service's management objective for 
golden eagles. It is also important to recognize that the Hopi take of 
golden eagles pre-dates all other forms of recorded anthropogenic 
mortality and is a protected activity under the Religious Freedom 
Restoration Act (42 U.S.C. 2000bb et seq.). The Service assigned 
priority over all but emergency take of eagles to Indian religious take 
in the 2009 Eagle Rule; thus the Service has an obligation to reduce 
other forms of more recently instituted anthropogenic take before it 
impacts the Hopi by reducing their take.
    Comment: The regulations should include an explanation of how the 
Service intends to implement the United Nations Declaration on the 
Rights of Indigenous People (``UN DRIP'') relative to the issuance of 
30-year take permits for eagles. Relevant provisions of the UN DRIP 
that should have been discussed include, among other things, the impact 
of the following Articles on the Service's take regulations: Article 19 
(requiring ``free, prior and informed consent'' of indigenous peoples 
where the United States adopts or implements legislative or 
administrative measures which may affect them); Article 24 (clarifying, 
inter alia, that indigenous peoples have ``the right to their 
traditional medicines and to maintain their health practices, including 
the conservation of their vital medicinal plants, animals and 
minerals''); and Article 25 (emphasizing the right of indigenous 
peoples to ``maintain and strengthen their distinctive spiritual 
relationship with their traditionally owned or otherwise occupied and 
used lands, territories, waters and coastal seas and other 
resources'').
    Response: The United States did not originally vote in favor of the 
United Nations Declaration on the Rights of Indigenous Peoples in 2007, 
but in 2010, President Obama announced U.S. support for the Declaration 
by Presidential Proclamation while noting that the Declaration is not 
legally binding or a statement of current international law (see 
Announcement of United States Support for the United Nations 
Declaration on the Rights of Indigenous Peoples, U.S. Dept. of State 
(2010), available at: http://www.state.gov/documents/organization/184099.pdf). The Service will continue to consult with federally 
recognized tribes in the spirit of the Declaration when any potential 
authorization of eagle take may affect tribal interests, consistent 
with the Presidential Proclamation and the Service's Native American 
Policy at 510 FW 1. The Federal Register publication of 50 CFR 22.26 in 
2009 sets forth our policy with respect to consultation and NHPA 
compliance when issuing permits (74 FR 46836, September 11, 2009, pp. 
46844, 46873, 46874).
    Comment: The rule needs more clarity as to when a permit is 
required. For example, should items such as the distance from a known 
natal area, significant presence of eagles based on telemetry data or 
similar measures, or the density of eagles in the immediate vicinity of 
the proposed project be made into clear triggers for consultation? 
Furthermore, there is no specific guidance as to the type of projects 
that may need to apply. Would, for example, a 10- to 12-story building 
in a valley with minimal documented flyovers be treated the same as the 
conversion of a small jeep road to a paved thoroughfare? If the newly 
paved road brings significant and ongoing human disturbance to a 
relatively pristine location in close proximity (say within 15 miles) 
of known eagle nests or natal areas, would both have the same 
consultation need?
    Response: A permit is required to be in compliance with the Eagle 
Act if take of an eagle occurs. It is difficult to predict with 
certainty exactly what precise circumstances will result in an eagle 
being taken. However, we have developed guidance documents to help 
people understand when their activities may take eagles. Guidance for 
how to avoid disturbance of bald eagles can be found in our 2007 
National Bald Eagle Management Guidelines. It is important to note that 
some of the recommended distance buffers in those guidelines should be 
increased in more open and less forested landscapes. We are working on 
official guidance for avoiding disturbance of golden eagles.
    Comment: Projects with eagle permit applications that have been in 
process prior to release of the final regulations should not be subject 
to new rule provisions unless an applicant volunteers to incorporate 
the new provisions. Such changes would significantly extend the time to 
provide project information, increase Service staff time, drive up 
costs further, delay permit processing, and adversely affect project 
financing very late in the financing process. These applications should 
be considered first in line for the purposes of consideration of the 
LAP threshold. Many of the sites did not perform 2 years of 
preconstruction eagle use monitoring because they believe they are low 
risk. If these rules are finalized, they should not be required to 
perform additional monitoring.
    Response: The final regulations contain provisions that allow 
applicants to obtain coverage under all of the provisions of the prior 
regulations if they submit complete applications satisfying all of the 
requirements of those regulations within 6 months of the effective date 
of this final rule. However, with respect to one of the examples used 
by the commenter, we note that the Service guidance since 2011 has 
recommended 2 or more years of pre-construction eagle surveys, so any 
prospective wind projects conceived since then should have been aware 
of this.
    Comment: We believe additional clarification is needed regarding 
whether the proposed rule is retroactive.
    Response: The regulations are not retroactive, and we are 
incorporating a 6-month ``grandfathering'' period after the effective 
date of this rule (see DATES, above, and Sec.  22.26(i), below) wherein 
applicants (persons and entities who have already submitted 
applications) and project proponents who are in the process of 
developing permit applications can choose whether to apply (or re-
apply) to be permitted under all the provisions of the 2009 regulations 
or all the provisions of these final regulations.

[[Page 91538]]

    Comment: Existing HCPs that include golden eagle coverage should be 
``grandfathered'' in without fear of these proposed regulations being 
interpreted to undermine the HCP take authorization by imposing 
additional mitigation requirements. These HCPs were designed to assure 
permittees there would be ``no surprises,'' that they were not 
committing to conservation measures, only to have the rules changed on 
them part way into the permit term. The final eagle permit rule must 
exempt from the final rule any eagle ESA incidental take permits whose 
applications have been submitted prior to the effective date of the 
final rule. The regulations should also exempt Natural Resource 
Community Plans and HCPs that address eagles in anticipation of 
obtaining ESA incidental take permits.
    Response: In 2008, we issued a final rule addressing incidental 
take authorization under the ESA and Eagle Act (73 FR 29075, May 20, 
2008). This rule established regulations under 50 CFR 22.11 to provide 
take authorization under the Eagle Act to ESA section 10(a)(1)(B) 
permittees, where bald or golden eagles are included as covered 
species, as long as the permittee is in full compliance with the terms 
and conditions of the ESA permit. Compliance with the terms and 
conditions of the permit includes not exceeding the amount of 
incidental take that was authorized. Failure to abide by the ESA 
section 10 permit requirements that pertain to eagles may, however, 
potentially void the Eagle Act take authorization for these permits, 
and result in permit revocation. In addition, the 2008 rule included a 
provision clarifying the criterion for permit revocation for eagles: 
Whether the activities covered under the permit are compatible with the 
preservation of the bald or golden eagle, instead of the criterion set 
forth in 16 U.S.C. 1539(a)(2)(B)(iv). For ESA permits already in 
effect, the conservation measures required to cover bald and golden 
eagles under previously issued ESA incidental take permits were deemed 
to be compatible with the conservation standards of the Eagle Act. This 
final rule does not modify those 2008 regulations. Thus, the terms and 
conditions of existing ESA section 10 permits where eagles were 
included as covered species, and where the permittee is in compliance 
with the conditions of ESA permit, are not affected by this rulemaking. 
In contrast, ESA incidental take authorizations for eagles that are not 
already permitted are subject to the standards of permits issued under 
the Eagle Act incidental take permit regulations, due to the Eagle Act 
requirement that any permit issued must be ``compatible with the 
preservation of eagles'' and the Service's 2009 interpretation and 
application of that preservation standard under the Eagle Act. On May 
10, 2011, the Service Director issued a memorandum to the Regional 
Directors clarifying that the terms and conditions of new ESA 
incidental take permits that cover eagles, including the mitigation 
requirements, must meet the issuance criteria of the Eagle Act 
regulations at 50 CFR 22.26. The memorandum reads, in part: ``[T]he 
Service publically committed through its Finding of No Significant 
Impact for the new Eagle Act regulations that it will not issue any 
take permits for golden eagles beyond historically authorized take 
levels, unless the impacts to golden eagles can be completely offset'' 
to achieve no net loss to the breeding population. This policy applies 
to permits issued under the ESA as well as the Eagle Act. If bald or 
golden eagles are included as covered species in a section 10 permit, 
the avoidance, minimization, and other mitigation measures in the 
project description and permit terms and conditions must meet the Eagle 
Act permit issuance criteria of 50 CFR 22.26.'' Therefore, in order for 
the Service to confer Eagle Act take coverage through the ESA section 
10 permit program, ESA HCPs must meet the Eagle Act standards for 
permitting, including mitigation requirements. We believe it is 
appropriate to allow potential applicants who are well along in the 
planning process to move forward under the existing regulations. 
Therefore, we are taking a similar approach for potential ESA section 
10 applicants as we are for potential Eagle Act permit applicants, in 
that applicants who submit an ESA section 10 application that includes 
take coverage for bald or golden eagles within 6 months of the 
effective date of this rule may choose whether the standards of 50 CFR 
22.26 that were in place prior to that effective date will apply to 
their permits or the standards of these final regulations.
    Comment: The Service encourages applicants to include bald and 
golden eagles as covered species in HCPs developed for incidental take 
permits under the ESA. The final eagle rule should make clear that 
Eagle Act permits would satisfy the requirements under the ESA 
regulations at 50 CFR part 17 for future permittees that are seeking 
permit coverage for a single project for take of species covered by the 
ESA and the Eagle Act.
    Response: Eagle Act permit coverage that is not conferred under 
issuance of an ESA section 10(a)(1)(B) incidental take permit 
associated with an HCP explicitly does not satisfy the requirements 
under the ESA regulations at 50 CFR part 17 for permit applicants 
seeking permit coverage for take of species prohibited by the ESA and 
the Eagle Act. Simply put, an Eagle Act permit issued under 50 CFR 
22.26 does not provide take authorization under the ESA.
    Comment: Affected tribes should be notified immediately upon 
receiving notice of a take and invited to take culturally appropriate 
action with respect to eagle remains with which the tribe has a 
geophysical association.
    Response: Regarding allowing affected tribes to take culturally 
appropriate action with respect to remains of eagles taken under 
permits, much depends on what those cultural practices are. For 
example, we cannot authorize tribal rites on private land, and we also 
will not allow tribes to take direct possession of the eagle remains. 
We understand the desire of some tribes to retain eagles found on or 
near Indian lands; however, to maintain a fair and equitable 
distribution of eagle feathers to all federally recognized tribes, the 
NER must fill orders on a first-come, first-served basis, and require 
that all usable eagles be sent to the NER for distribution in this 
manner. Any eagles diverted from coming to the NER would decrease the 
number of eagles available to other tribal members, and may unfairly 
impact some tribes.
    Comment: Proposed new standards for ``required determinations'' 
found at 50 CFR 22.26(f)(2)-(8) are so vague as to render the refusal 
of the Service to issue a permit wholly discretionary, and unreviewable 
by judicial authority. A protected local interest such as a utility 
must be reasonably allowed to receive a permit in order to meet the 
statutory objective of continuing its activity without fear of 
enforcement. While certain simple, objective, and inexpensive criteria 
are appropriate, the proposed criteria are generally vague or 
overreaching to the extent of flouting the statutory purpose of the 
permit program for protected local interests. Any protected interest 
should not have to satisfy the population requirement because the 
statute mandates that a permit program must ``permit the taking of such 
eagles for the protection of . . . other interests in a particular 
locality . . . .'' [emphasis added]. In such instances, the statute 
clearly requires that protected activities shall be

[[Page 91539]]

permitted over the interests of the birds in order for those activities 
to be conducted without fear of enforcement. [This comment also 
specifically objected to provisions of Sec.  22.26(f)(2)-(8) related to 
the LAP, stipulations that permit issuance take into account ongoing 
criminal or civil actions, and the priority afforded to take to satisfy 
Native American religious needs.]
    Response: We disagree with the commenter that the required 
determinations in Sec.  22.26(f) are ``generally vague or overreaching 
to the extent of flouting the statutory purpose of the permit program 
for protected local interests.'' The preamble to the proposed rule 
explains most of the criteria added to 50 CFR 22.26(f) in this 
rulemaking in detail and clarifies how the Service will determine 
whether an applicant is in compliance. The proposed required 
determinations are consistent with the statutory purposes of the Eagle 
Act. As we stated when first promulgating this regulation in 2009, the 
Service interprets the statutory phrase ``for the protection of . . . 
other interests in any particular locality'' as enabling us to 
accommodate a broad spectrum of public and private interests that might 
incidentally take eagles, as long as we can determine that any 
authorized take is compatible with the preservation of eagles (see 74 
FR 46836, September 11, 2009, p. 46837). We do not agree with the 
commenter's interpretation that the ``protection of . . . other 
interests'' language requires the Service to ensure the protection of 
other interests without balancing those interests with the management 
and protection of the species the statute was enacted to protect.
    The commenter takes issue with the definition of ``LAP,'' 
referenced in proposed Sec.  22.26(f)(2), as being arbitrary and vague, 
and the commenter misconstrues the effect of exceeding the LAP 
threshold as requiring the rejection of a permit application. This 
required determination does not compel us to reject an application when 
take in the LAP exceeds 5%; it instead specifies that any take within 
the limit is compatible with the preservation of eagles. Take above the 
limit would require further environmental analysis over that conducted 
in the PEIS for this rule. That analysis might show that no additional 
action is required for the permit to be compatible with the 
preservation of eagles, or it may show the take could be compatible 
with additional action. Examples of such additional actions could be to 
require implementation of additional compensatory mitigation to offset 
take above the 5% LAP threshold or, for existing projects within the 
LAP area, to require measures that reduce the project's take when they 
seek incidental take permits. Many commenters, in particular state 
agencies and federally recognized tribes, strongly support the decision 
to ensure management and protection of not only the national population 
of bald eagles and golden eagles, but also regional and local 
populations. The LAP analysis, along with the regulatory requirements 
contingent upon that analysis, is one of the primary methods by which 
we can properly manage and adequately protect local eagle populations 
and ensure that cumulative effects do not become significant.
    To the extent the commenter argues that denial of a permit on any 
of the grounds listed in Sec.  22.26(f) would be unverifiable and 
arbitrary, the general permit regulations contain review procedures at 
50 CFR 13.29 setting forth the administrative remedies an applicant may 
pursue if a permit application is denied for any reason. These 
administrative remedies require the issuing officer to state the 
reasons for permit denial and to describe the evidence used to reach 
that decision. A permit applicant would also be free to pursue judicial 
review of a permit denial once all administrative remedies are 
exhausted.
    With regard to proposed Sec.  22.26(f)(8) (Sec.  22.26(f)(7) in 
this final rule), which requires the Service to determine, before 
issuing a permit, that issuance of the permit will not interfere with 
an ongoing civil or criminal action concerning unpermitted past eagle 
take at the project, one element of civil and criminal cases is 
establishing that take of eagles is not permitted, requiring 
coordination between the Service's law enforcement and migratory bird 
divisions early in an investigation. Later in the process, court 
judgments may include a sentencing or probation condition that an eagle 
take permit be sought; or where settlement negotiations have been 
successful, settlement agreement often includes a requirement that a 
company apply for an eagle take permit. Without such a determination, 
issuance of a permit may in some cases disrupt the ongoing 
investigation, prosecution, or negotiation process.
    Finally, the commenter disagrees that authorization of take for the 
religious purposes of Indian tribes should be prioritized over 
activities such as farming or utility development or maintenance. These 
amendments do not change the relative priority order of religious take 
and take for other activities. Moreover, we stand by the reasons for 
originally establishing the priority order set forth in the preamble to 
the 2009 regulation (74 FR 46836, September 11, 2009).
    Comment: Rather than require a permit, the Service should develop 
best management practices (BMPs) for industries to serve as a tool box 
from which companies can select and tailor components as necessary to 
operate under, monitor activities, and voluntarily report any passive 
``take.'' Companies can choose either to rely on the guidelines or 
instead to develop their own internal construction standards that meet 
or exceed these guidelines. The use of BMPs, coupled with a commitment 
by the Service to exercise enforcement discretion for situations in 
which the BMPs did not avoid all impacts to eagles, could be an 
alternative to permitting. The Service should evaluate an alternative 
under which de minimis levels of passive ``take,'' including at oil and 
gas facilities, would be explicitly exempted from regulation under the 
incidental take permitting program. The Service should consider an 
activity-based programmatic approach similar to that under the Clean 
Water Act's nationwide permit program. That program covers specific 
activities that may be used across a number of industry sectors. 
Similarly, the Service should consider an approach utilizing the 
permit-by-rule method, which may also improve the approval process for 
activities that present known hazards and with known and effective 
mitigation techniques.
    Response: The process described in the first comment is exactly how 
the permit process is designed to work, except under a permit: (1) 
Enforcement discretion is not necessary because the take is authorized; 
and (2) compensatory mitigation is required for take of golden eagles 
to offset the effects of the take. Because of the statutory language of 
the Eagle Act, the Service cannot exempt any take from regulation, and 
cannot exempt any bald eagle take from take liability without a permit 
(16 U.S.C. 668 and 668a). We will consider legal mechanisms for 
streamlining take authorizations to low-risk or lower impact activities 
in the future.
    Comment: The Service should not postpone redefining the definition 
of a ``low risk'' project of the eagle permit program in this 
rulemaking. The effort to establish a low-risk permit category should 
be a high-priority item for the Service as it is integral to 
establishing a streamlined permitting process.
    Response: We agree that this is a high priority item. In the 
meantime, the PEIS programmatically analyzes eagle take within certain 
levels and the effects of complying with compensatory

[[Page 91540]]

mitigation requirements to allow the Service to tier from the PEIS when 
conducting project-level NEPA analyses. The PEIS will cover the 
analysis of effects to eagles under NEPA if: (1) The project will not 
take eagles at a rate that exceeds (individually or cumulatively) the 
take limit of the EMU (unless take is offset); (2) the project does not 
result in Service authorized take (individually or cumulatively) in 
excess of 5% of the LAP; and (3) the applicant will mitigate using an 
approach the Service has already analyzed (e.g., power pole 
retrofitting), or the applicant agrees to use a Service-approved third-
party mitigation program such as a mitigation bank or in-lieu fee 
program to accomplish any required offset for the authorized mortality. 
The PEIS, therefore, should streamline the NEPA process for these 
projects.

Nest Take Permits

    Comment: The proposed rule leaves ``home range'' undefined, but it 
is used in the definition of ``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.''
    Response: Home range means the area an animal uses to secure food 
and shelter, and through which the animal moves on a regular basis.
    Comment: The proposed definition of ``eagle nest'' is ambiguous and 
likely subject to misinterpretation. Using our residential development 
project as an example, the Service has constructed two manmade 
experimental platforms in the vicinity of our project with the intent 
of encouraging golden eagle nesting. The experiment has not been 
successful. No nests have been built since the platforms were installed 
more than 3 years ago. Based on the ambiguous language of this 
definition, however, the experimental platforms themselves could be 
considered nests if a golden eagle simply lands on, and thereby 
``uses'' the platform--which is an assemblage of material--during the 
breeding season.
    Comment: There seems to be ambiguity surrounding the definition of 
an in-use nest. The proposed rule will allow for removal of an in-use 
nest prior to egg-laying, yet the definition fails to determine if 
alternate nests in which the adults regularly perch would also be 
considered an in-use nest.
    Response: The definition of ``eagle nest'' in this rule includes 
the phrase ``for purposes of reproduction,'' so it does not encompass 
nest structures that an eagle simply lands on.
    Comment: With regard to the proposed definition of ``alternate 
nest,'' it is unreasonable to assume that a nest is an alternate nest 
in perpetuity, but this definition assumes that all nests not in use 
within a nesting territory are, in fact, alternate nests without 
reference to any time frame. Similarly, the definition makes no 
reference to the condition of the nest.
    Response: There is a great deal of variability as to how long a 
nest will be unused before eagles return to use it again. Eagles 
typically build nests where conditions are suitable for raising young 
relative to other locations. Sometimes those conditions remain 
relatively steady, sometimes they fluctuate between years, and 
sometimes they disappear. Even nests in good locations may not be used 
for many years. As for the condition of nests being the determining 
factor in whether they should remain protected, eagle nests are not 
infrequently damaged or partially destroyed by severe weather, but then 
restored to good condition by the eagles early in the breeding season. 
We think it is reasonable to err on the side of caution in protecting 
potentially valuable nests by not providing an arbitrary timeframe for 
when an eagle nest is no longer considered an eagle nest. At any rate, 
these regulations provide for a permit process that allows for removal 
of nests.
    Comment: Loss of a nesting territory is far more significant than 
the take of an individual, as the cumulative reproductive contribution 
of the pair or territory over time is lost. For this reason, loss of 
nesting territories should not be permitted unless it can be 
affirmatively determined that such loss will not have a detrimental 
effect on the LAP or on a critical subpopulation.
    Response: The Service agrees with this comment, and does take into 
account the effects of territory loss on the eagle management unit and 
LAP take limits, as described in the Status Report on page 26.
    Comment: Allowing removal of eagle nests just because it is outside 
of the breeding season is short sighted, and ignores the underlying 
role of adult pairs to annually defend their nests and near nest 
proximity, so that reproduction can continue in subsequent years, not 
just in the current nest cycle.
    Response: Prohibiting removal of nests outside the breeding season 
amounts to prohibiting eagle nest removal under any circumstances. It 
is not realistic to place a total ban on removing eagle nests. As bald 
eagle populations continue to grow, an increasing number of nests are 
built in locations that pose safety hazards or severely restrict a 
landowner's ability to use his or her property. The regulations for 
permitting eagle nest removal include many safeguards to ensure that 
nest removal is compatible with the preservation of eagles.
    Comment: Established protocols for monitoring throughout the course 
of nest take permits must be developed, and monitoring must be required 
by trained and approved independent experts. Monitoring time for nest 
and incidental take permits as required by permits should be similar to 
that required by most eagle-nest monitoring programs--a minimum of 2 
hours per week by a trained independent monitor.
    Response: For nest take permits, as opposed to disturbance permits, 
monitoring would be required mostly to detect whether the resident pair 
of eagles nest successfully elsewhere. The level of monitoring will be 
contingent on the biological significance of the nest site to the eagle 
population or local (human) community, the ability to identify the pair 
of eagles that were potentially displaced, the feasibility of 
monitoring at different levels of intensity, and other case-specific 
factors.
    Comment: The Service should clarify that it is their intention that 
wind energy projects apply the buffer distances set forth in the 
National Bald Eagle Management Guidelines to wind farm infrastructure.
    Response: The National Bald Eagle Management Guidelines do not 
include recommended buffer distances between bald eagle nests and wind 
turbines because the primary concern with turbines is blade strike 
mortality and not disturbance. With respect to disturbance, many of the 
other recommendations in the Guidelines would apply to wind turbines 
during construction and maintenance. However, at this time, we do not 
have sufficient information to recommend buffer distances between eagle 
nests and wind turbines to avoid or reduce the likelihood of mortality. 
More observation is needed before the Service will issue official 
guidance for distance buffers between eagle nests and wind turbines.
    Comment: Without an objective assessment (i.e., not based on nest 
structures) of what the spatial extent of a specific pair's territory 
is, there is no way to assess whether or not a nest is within a pair's 
territory without circular reasoning, and therefore no way to determine 
if a territory, rather than a nest or set of nests, was abandoned. Only 
in cases where there is independent observation of the extent of

[[Page 91541]]

space use of a specific breeding pair, most likely through telemetry or 
color-mark observations, will it be possible to assess territory 
boundaries independently of nests. The Service should provide an 
objective, operationally defined (i.e., defined in terms of observable 
characteristics) definition of the spatial extent of an eagle territory 
or abandon its reliance on availability of a nest ``within the nesting 
territory'' to assess territory abandonment.
    Response: What this commenter is suggesting is not possible. The 
Service directly addresses this admittedly difficult issue in the 
Status Report in the following way: ``We recognize that for golden 
eagles in particular, nesting territories are often occupied by 
successive generations of individuals. Additionally, for both species, 
some nesting territories hold more value than others (Millsap et al. 
2015, Watts 2015). Moreover, it is often difficult to predict in 
advance whether an activity will result in loss of a nesting territory, 
or simply the loss of a nest structure and cause a shift in use to an 
existing or new alternative nest--which may have little or no 
consequence to the eagle population (Watts 2015). For these reasons, 
each instance where loss of a nesting territory is a possible outcome 
requires additional review on the part of Service biologists. 
Permitting the loss of high-value nesting territories with a long 
history of occupancy and production could have greater population-level 
consequences.''
    Comment: The Service has described that in populations with high 
eagle density, the biological value of a single nest to eagle 
populations is lower, as productivity in highly saturated eagle 
populations decreases due to nests being built in less than ideal 
locations in relation to food sources and increased competition among 
nesting pairs. Eagle nest-monitoring data by the Florida Fish and 
Wildlife Conservation Commission do not support this conclusion. The 
Service should consider data available from state agencies and similar 
partners when determining biological value of individual nests in order 
to ensure permitting decisions are evidence-based and consistent with 
the proposed preservation standard.
    Response: There is increasing evidence in raptor populations that 
high-quality nesting sites are occupied first, and more consistently, 
than lower quality nesting sites. This factor contributes to what is 
known as the habitat heterogeneity effect, a biological process whereby 
overall per capita productivity of a raptor population declines with 
increasing density of nests because newer territories are in lesser 
habitats and have lower productivity. This is the basis for the 
Service's statement, and it is described in more detail in the Status 
Report on page 6. However, the Service also acknowledges the importance 
of taking individual circumstances into account, including shifts in 
prey availability over time that may lead to temporal variation in 
territory quality.
    Comment: The Service refers to ``alternate nests just being built'' 
as having low biological value. However, in some territories, a newly 
built nest may have greater biological value than the most recently 
``in use'' nest depending on territory-specific factors. We recommend 
that the Service allow for territory-specific factors to be considered 
in determining biological value of nests when permitting nest removal.
    Response: We fully agree with this comment. Assessing the 
biological value of nests will include consideration of site-specific 
factors, including information pertaining to the availability and past 
use of other nests in the territory.
    Comment: The Service should consider the potential for 
inconsistency in determining and applying ``net benefit'' calculations, 
similar to the issues raised in the Service's approach for determining 
compensatory mitigation for permits under the 2009 regulations. The 
Service should also consider whether the standard for ``net benefit'' 
incentivizes removal of nests over avoidance and minimization measures, 
which could accelerate loss of nest territories. If acceptable ``net 
benefit'' standards for nest removal are relatively low, as compared to 
the cumulative cost for projects to avoid and minimize, it can be 
expected that more projects will pursue nest removal permits rather 
than incidental take permits.
    Response: We acknowledge that the net benefit requirement is 
somewhat vague and could potentially be applied inconsistently. 
However, we have regular coordination calls between staff who issue 
eagle permits from the different Service Regional Offices, and the 
application of this standard to particular permits has been discussed 
so far for every case where it has been applied. We hope to be able to 
continue that level of coordination to further consistency in how this 
provision is applied. We typically will require a disturbance permit 
rather than a nest removal permit if it is possible for the potential 
applicant to avoid actual removal of the nest. The regulations prevent 
the Service from issuing a permit unless we determine there is no 
practicable alternative to nest removal that would protect the interest 
to be served.
    Comment: We recommend the Service consider options to ensure the 
persistence of local populations in areas where eagle nests on 
artificial structures represent a larger percentage of the LAP.
    Response: Nests that eagles build on artificial structures fall 
within the definition of ``eagle nests'' protected under the Eagle Act, 
the removal of which would require a permit. The LAP cumulative effects 
analysis, and revised definition of the Eagle Act preservation standard 
that includes the persistence of local populations, both apply to nest 
removal permits and are designed to protect local populations even if a 
large percentage of eagles breed on nests built on artificial 
structures.
    Comment: The proposed regulations would retain the requirement that 
the Service consider the availability of alternative suitable nesting 
habitat, but a finding that there is would not be a prerequisite for 
issuing a permit. We request that the Service reconsider this proposal 
to remove this requirement and instead require that suitable nesting 
habitat be present, but not necessarily available, in the area. Removal 
of this requirement would reduce or eliminate opportunities to apply 
mitigation measures within the immediate vicinity of the affected area.
    Response: The types of conditions that eagles nest in are widely 
variable. In some circumstances, making nest removal contingent on 
there being suitable nesting habitat available is not warranted or 
reasonable. For example, more and more often, bald eagles are nesting 
in risky infrastructure that does not provide the conditions needed for 
successfully nesting and fledging of young. Such nests can also present 
safety hazards and/or unduly restrict people's ability to conduct daily 
routine activities. The regulations need to provide an option to issue 
permits for removal of nests that have marginal biological value and 
also pose problems or hazards to people or eagles, regardless of there 
being suitable nesting habitat in the vicinity.
    Comment: The Service proposes to use 10 consecutive days of 
continuous absence as a national metric for declaring a nest inactive. 
This metric should be researched further and should take into 
consideration activity patterns of the species within the LAP where 
nest take would occur. There is ample research showing that juvenile 
bald eagles use their nests up to 45 days after fledging before they 
migrate, and often

[[Page 91542]]

do not return to the nest for periods of more than 10 days.
    Response: The metric of 10 consecutive days has been in the 
regulations for several decades and has proven to be a reasonable 
timeframe for purposes of both permitting and protection of eagles. If 
young eagles have left and not returned to a nest over 10 consecutive 
days, it is reasonable to conclude the nest structure is no longer 
critical to them and can be removed, assuming other criteria warranting 
nest removal have been met. We fully recognize that nests might be 
revisited and used for longer periods of time, but loss of a nest after 
10 days of non-use is unlikely to pose a threat to survival of the 
juveniles.
    Comment: The proposed new nest take rules do not give consideration 
to the loss of habitat that accompanies a nest take in areas with 
rampant growth and development.
    Comment: The regulations should increase protection to the areas 
surrounding active nests. The proposed rule does not directly address 
buffers of protection surrounding nests throughout the year. Habitat 
modification can undermine the viability of that food source, 
threatening the continued success of the nest. This potential loss of 
productivity is not accounted for in the permitting framework, yet 
could have significant impacts on local populations.
    Response: The Eagle Act does not provide direct protection to eagle 
habitat, except for nests themselves. However, our regulations and 
guidance include a variety of strategies that take habitat into 
consideration, because habitat is, of course, necessary to preserve 
eagles. With regard to nest take permits, they can be issued only for 
specific limited purposes, unless a net benefit to eagles will be 
provided. The biological value of a nest is closely tied to the value 
of the surrounding habitat. Thus removal of a high-value nest would 
require a significant net benefit to eagles. The Service's 
recommendations for preventing disturbance to nesting bald eagles are 
in our National Bald Eagle Management Guidelines, including recommended 
buffer distances for construction and other activities near bald eagle 
nests. We are in the process of developing comparable guidance for 
golden eagles.
    Comment: The Service should include in the final document a clear 
decision-making process that includes discreet criteria as to what 
constitutes an anticipated emergency situation. Permits should be 
limited to cases where human health or safety is highly likely to be 
endangered if no action is taken, and there is high confidence that the 
nest does not contain eggs or young.
    Comment: What is the definition of a safety emergency (as used in 
the context of the proposed rule revision)? How does the Service make 
this determination? Does the Service intend to gain insight/formal 
input from other federal agencies (e.g., Federal Aviation 
Administration, U.S. Department of Agriculture--Animal and Plant Health 
Inspection Service--Wildlife Services, Federal Highway Administration) 
that have expertise and/or regulatory authority in specific situations?
    Response: We disagree with the suggestion that, unless there is 
high confidence that no eggs or young are in a nest, the Service cannot 
issue a permit for the purpose of protecting human or eagle lives. We 
believe a safety risk to people or eagles should take precedence above 
leaving eggs or nestlings undisturbed in the nest. In response to the 
question about what constitutes a safety emergency, the term is defined 
in the regulations at 50 CFR 22.3 as ``a situation that necessitates 
immediate action to alleviate a threat of bodily harm to humans or 
eagles.'' How we will make the determination is a fair question, but it 
may not be advisable or helpful to codify specifications for what 
factors must be present because of the risk of excluding circumstances 
that we failed to consider but which present a serious risk of bodily 
harm. However, we may develop some relatively broad guidance to assist 
in making these determinations in the future.
    Comment: Under the proposed changes to nest take permits, there is 
a provision for the Service to waive the requirement that nestlings be 
transported to a foster nest or permitted rehabilitator in the case of 
an emergency nest removal. Even in cases where a nest is not near a 
possible foster nest or rehabilitator, the Service should put forth all 
efforts to ensure that nestlings are released back into the wild.
    Response: The revision makes it possible for the Service to legally 
authorize the nest removal in a case of emergency (imminent risk to 
human or eagle safety) even when it is not feasible to place the eggs 
or young with a rehabilitator. Where it is reasonably possible to do 
so, the permit will require the eggs or young to be placed with a 
permitted rehabilitator or other similarly authorized facility.
    Comment: We support the Service's position that a minimal level of 
compensatory mitigation is appropriate when authorizing take of golden 
eagle nests; however, the Service should clarify that no compensatory 
mitigation is required when these instances involve bald eagle nests.
    Response: Actually, we did not and do not take the position that 
only a minimal level of compensation is required for take of a golden 
eagle nest. Our position then and now is that golden eagle nest take 
permits will be more restrictive in nature, but without including 
different criteria for the two species in the regulations. 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. All golden eagle take permits, except for 
those authorizing ongoing take occurring prior to 2009, will require 
offsetting mitigation. The avoidance and minimization requirements in 
the existing and these regulations are designed to ensure that removal 
of a nest of either species is the last option. 81 FR 27934, 27961 (May 
6, 2016). Regarding bald eagle nests, mitigation will be required if 
the activity that necessitates the take does not in itself provide a 
``net benefit.'' As explained earlier in the preamble of this rule, the 
mitigation is likely to be minimal for new bald eagle nests established 
in areas densely populated by eagles, which are more and more typically 
the nests for which applicants seek nest take permits.
    Comment: Eagle nests may be subject to protections of the National 
Historic Preservation Act (NHPA) due to the status of eagle nests as 
traditional cultural properties (36 CFR 800.16(I)(1): Historic property 
includes properties of traditional religious and cultural importance to 
an Indian tribe). Therefore, for nesting sites subject to the NHPA, the 
Service must comply with the NHPA's section 106 consultation process 
prior to authorizing an undertaking that could affect eagle nesting 
sites (36 CFR 800.2(c)(2)(ii) requires consultation with tribes where 
properties of religious or cultural significance may be affected by a 
federal undertaking). Consultation with tribal governments regarding 
nest removal permits is also necessary to determine whether a vacant 
nest site has or has not been permanently abandoned.
    Response: The Service is responsible for compliance with the NHPA 
and to review all projects that may have the potential to affect 
historic properties. Traditional cultural properties, and religious and 
sacred areas, are all elements that might be included within the 
borders of projects under our review. As we follow the NHPA 
consultation process, information about such sites will develop that 
will help inform our decisions. With regard to the

[[Page 91543]]

status of the nest, that is, whether it has been used for breeding 
purposes in recent years or is currently in use, we will rely on any 
available and reliable source of such information, including through 
consultation with tribes that have such information.
    Comment: The eagle nest take permit regulations should take into 
account existing practices adopted to address take or removal of eagle 
and other raptor nests. For example, the Bridger Coal Mine in Wyoming 
is operated under a permit from the Wyoming Department of Environmental 
Quality. The mine permit incorporates a raptor mitigation plan that is 
reviewed by the Service. Under the raptor mitigation plan, if the mine 
operators locate an inactive (or ``alternate,'' as now defined in the 
proposed rule) nest in an active mining area, in most cases it may 
remove the nest as long as a substitute nest is constructed without 
applying for a separate take permit.
    Response: Wyoming's Coal Mine Migratory Bird Plans do not allow 
removal of eagle nests without a permit, and the mining permit issued 
by the Wyoming Department of Environmental Quality provides no 
exemption from Service authorities or permitting processes. The plan 
addresses when there is a need for a nest permit application and 
proposed mitigation (which may or may not be the final mitigation 
approved in the permit as determined by the Service's Migratory Bird 
Office).

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 rule is 
significant because it may raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in E.O. 12866.
    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 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, 201, 110 Stat. 847)), 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. Thus, for a regulatory 
flexibility analysis to be required, impacts must exceed a threshold 
for ``significant impact'' and a threshold for a ``substantial number 
of small entities.'' See 5 U.S.C. 605(b). We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act and determined that this action will not have a 
significant economic impact on a substantial number of small entities. 
This analysis first estimates the number of businesses impacted and 
then estimates the economic impact of the rule.
    To assess the effects of the rule on small entities, we focus on 
home construction companies, wind energy facilities, and electric 
transmission companies. Although small, non-commercial wind energy 
facilities could seek permits, we anticipate that most of the 
applications for wind energy 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.
    The U.S. Small Business Administration (SBA) defines a small 
business as one with annual revenue or employment that meets or is 
below an established size standard, which is less than 250 employees 
for ``Wind Electric Power Generation (NAICS 221115), less than 1,000 
employees for ``Electric Power Distribution'' (NAICS 221122), less than 
500 employees for ``Logging'' (NAICS 113310), less than $36.5 million 
for ``Construction of Buildings'' (NAICS 236115, 236116, 236117, 
236210, and 236220), less than $36.5 million for ``Highway, Street, and 
Bridge Construction'' (NAICS 237310), less than $15.0 million for 
``Support Activities for Rail Transportation'' (NAICS 488210), and less 
than 1,500 employees for ``Gold Ore Mining'' (NAICS 212221). Table 1 
describes the number of businesses within each industry and the 
estimated percentage of small businesses impacted by this rule.

                             Table 1--Distribution of Potential Impacted Businesses
----------------------------------------------------------------------------------------------------------------
                                                         Total businesses          Small businesses potentially
                                                 --------------------------------        impacted by rule
       NAICS code              Description                          Number  of   -------------------------------
                                                   Number of all       small
                                                    businesses      businesses        Number        Percentage
----------------------------------------------------------------------------------------------------------------
221115.................  Wind Electric Power                 410             402              10               2
                          Generation.
221122.................  Electric Power                    7,547           7,513             <26              <1
                          Distribution.
113310.................  Logging................           7,908           7,907          1 to 2              <1
236115.................  New Single-family                30,380          29,469             <26              <1
                          Housing Construction
                          (Except For-Sale
                          Builders).
236116.................  New Multifamily Housing           1,788           1,734             <26              <2
                          Construction (except
                          For-Sale Builders).

[[Page 91544]]

 
236117.................  New Housing For-Sale             16,093          15,610             <26              <1
                          Builders.
236118.................  Residential Remodelers.          77,855          75,519             <26              <1
236210.................  Industrial Building               2,622           2,543             <26              <1
                          Construction.
236220.................  Commercial and                   35,758          34,685             <26              <1
                          Institutional Building
                          Construction.
237310.................  Highway, Street, and              8,854           8,588             <26              <1
                          Bridge Construction.
237990.................  Other Heavy and Civil             3,423           3,320             <26              <1
                          Engineering
                          Construction.
488210.................  Support Activities for             1275             613          1 to 2              <1
                          Rail Transportation.
212221.................  Gold Ore Mining........             214             214          1 to 2              <1
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau, 2012 County Business Patterns.

    In the first 5 years (2011 through 2015) since the eagle permit 
regulations at 50 CFR 22.26 and 50 CFR 22.27 were published, the 
Service has issued 347 standard permits which averages about 70 permits 
annually. For the 347 standard permits, 131 permits were issued to 
businesses, 172 permits to Government agencies, and 44 permits to 
individuals. The average annual distribution was 26 permits to 
businesses, 34 permits to government, and 9 permits to individuals. 
Businesses that apply for permits typically include home construction, 
road construction, and various other construction projects. Thus, the 
maximum impact to any single construction industry would be less than 
26 businesses annually. It is more likely that the permits would be 
distributed across various construction industries. As a result, less 
than 1to 2 percent of small businesses in these sectors will be 
impacted by this rule.
    Homeowners have no fee increases except for applications for 
multiple eagle nest take ($500). Given the number of standard permits 
issued (44), this rule will not have a significant economic effect on a 
substantial number of homeowners. Commercial businesses will face 
higher permit fees under this rule. A commercial business applying for 
what was a standard permit would have to pay $2,500 (an increase of 
$2,000). Businesses in the construction industry are defined as small 
if they have annual revenue less than $36.5 million, yet many 
construction businesses (38 percent) have revenue less than $250,000. 
To conservatively estimate the potential impact to commercial 
businesses applying for standard permits, we utilize $250,000 to depict 
small businesses' sales. Depending on the type of permit applications 
submitted by an individual small business, the permit fees will 
represent 1 to 3 percent of revenue for this size of business. Thus, 
the changes in standard permit fees will not have a significant 
economic effect on a substantial number of small businesses in the 
construction sectors. The changes in permit application processing and 
amendment fees are shown in Table 2.

[[Page 91545]]

[GRAPHIC] [TIFF OMITTED] TR16DE16.035

    From 2011 to 2015, we received a total of 37 programmatic permit 
applications and have issued one programmatic permit thus far. All of 
the applications except three are for wind energy projects. Two 
applications were from electric utilities, while one application was 
from a gold mining operation. We anticipate a greater volume of 
applications for permits for long-term activities in the future, 
although we expect the number to increase gradually over time. At the 
current average rate (7 applications annually), approximately 2 percent 
of small wind energy businesses apply for permits annually (Table 1). 
Furthermore, less than 1 percent of small businesses within the 
electric utility and mining sectors apply for permits (Table 1). 
Assuming perhaps a ten-fold increase in such permit applications over 
the foreseeable future, this rule will not impact a substantial number 
of small entities.
    Initial permit application processing fees for long-term permits 
will not change from the current $36,000. If a permittee requests the 
programmatic permit to exceed 5 years, then there will be an $8,000 
review fee every 5 years to recoup the Service's review costs. With a 
5-year maximum permit duration, renewal of a permit would require a 
$36,000 permit application processing fee, so the $8,000 administration 
fee reduces costs to small businesses engaged in long-term acitivities. 
We therefore certify that the rule will not have a significant economic 
impact on a substantial number of small entities, and no regulatory 
flexibility analysis is required.

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 rule will not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. The 
regulations changes will not affect small government activities in any 
significant way.
    b. This rule will 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 will not have significant 
takings implications. This rule does not contain any provisions that 
could constitute taking of private property. Therefore, a takings 
implication assessment is not required.

Federalism

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

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the rule will 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 final 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

[[Page 91546]]

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 final 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 
final rule:
    (1) Establishes an administration fee of $8,000 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) Changes the application fees associated with some permits.
    (3) Requires annual reports. This requirement is approved under OMB 
Control Number 1018-0022. There are no fees associated with annual 
reports.
    (4) Establishes a new reporting requirement and a new 
administration fee for permits of over 5 years.
    (5) Requires pre- and post-construction monitoring of eagle use of 
the project area, which may include preparation of an Eagle 
Conservation Plan, and requires immediate reporting of take of eagles 
and Threatened and Endangered species.
    OMB has not yet approved the information collection requirements 
associated with this rule. We will announce the approval in a separate 
notice in the Federal Register. When we seek renewal of OMB Control 
Number 1018-0022, we will incorporate the new hour and nonhour burden 
into that renewal and discontinue this OMB control number. An agency 
may not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.
    Title: Eagle Take Permits and Fees, 50 CFR 22.
    OMB Control Number: 1018-0167 (number assigned by OMB).
    Service Form Number(s): 3-200-71, 3-200-72.
    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.
    The Service inadvertently omitted Table 1 and its burden from the 
proposed rule. The following Table cites the total burden for this 
information collection.

                    Table 1--Estimated Hour and Cost Burden for Long Term Eagle Take Permits
----------------------------------------------------------------------------------------------------------------
                                                      Average
                                                    completion                                      $ Value of
      Activity/requirement         Annual number     time per      Total annual      Cost/hour     annual burden
                                   of responses      response      burden hours                        hours
                                                      (hours)                                        (rounded)
----------------------------------------------------------------------------------------------------------------
Pre-construction Monitoring                   15             650            9750          $34.26        $334,035
 Surveys........................
Preparation of Eagle                          15             200            3000           34.26         102,780
 Conservation Plan..............
Post Construction Monitoring....              15             700          10,500           34.26         359,730
Reporting Take of Eagles........              10               2              20           34.26             685
Reporting Take of Threatened &                 1               2               2           34.26              69
 Endangered Species.............
Sec.   22.26(c)(7)(ii)--Permit                 4               8              32           34.26           1,096
 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 compiles and
 submits to the Service, eagle
 fatality data or other
 pertinent information that is
 site-specific for the
 project.\9\ Footnote 9 may be
 found in Table 2 Note that the
 dollar value of the annual
 burden cost is included in the
 $8,000 permit 5-year permit
 review fee.....................
                                 -------------------------------------------------------------------------------
    Total.......................              60            1562          23,304  ..............         798,395
----------------------------------------------------------------------------------------------------------------


                                             Table 2--Changes in Nonhour Burden Fees for Eagle Take Permits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Total approved     Total proposed       Difference
      Activity/requirement       Existing approval (1018-     Current fee        Proposed fee      nonhour burden     nonhour burden   between 1018-0022
                                          0022)                                                         cost               cost          and  proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-200-71--application, Eagle     No. of responses and     $500 Non-           $500 Non-          $12,500 Non-       $12,500 Non-       $0 Non-
 Incidental Take--(not            annual burden hours      commercial.         commercial.        commercial.        commercial.        commercial.
 programmatic or long-term) \1\.  approved under OMB
                                  Control No. 1018-0022.
                                 This rule revises fees   $500 Commercial...  $2,500 Commercial  $60,000            $300,000           +$240,000
                                  and nonhour costs.                                              Commercial.        Commercial.        Commercial.
3-200-72--application, Eagle     No. of responses and     $500 Non-           $500 Non-          $5,000 Non-        $5,000 Non-        $0 Non-
 Nest Take--single nest           annual burden hours      commercial.         commercial.        commercial.        commercial.        commercial.
 (formerly ``standard'') \2\.     approved under OMB
                                  Control No. 1018-0022.
                                 This rule revises fees   $500 Commercial...  $2,500 Commercial  $10,000            $50,000            +$40,000
                                  and nonhour costs.                                              Commercial.        Commercial.        Commercial.

[[Page 91547]]

 
3-200-72--application, Eagle     No. of responses and     $1,000............  $500--Non-         $0 \3\...........  $500 Non-          +$500 Non-
 Nest Take--multiple nests        annual burden hours                          commercial.                           commercial.        commercial.
 (formerly ``programmatic'')      approved under OMB
 \3\.                             Control No. 1018-0022.
                                 This rule revises fees   ..................  $5,000--Commercia  .................  $40,000            +$40,000
                                  and nonhour costs.                           l.                                    Commercial.        Commercial.
3-200-71 Eagle Incidental Take   No. of responses and     $150 Non-           $150--Non-         $300 Non-          $300 Non-          $0 Non-
 Amendment--less than 5 years     annual burden hours      commercial.         commercial.        commercial.        commercial.        commercial.
 (formerly ``standard'' \4\.      approved under OMB
                                  Control No. 1018-0022.
                                 This rule revises fees   $150 Commercial...  $500--Commercial.  $2,700 \5\         $9,000 Commercial  +$6,300
                                  and nonhour costs.                                              Commercial.                           Commercial.
3-200-72 Eagle Nest Take         No. of responses and     $150 Non-           $150--Non-         $150 Non-          $150 Non-          $0 Non-
 Amendment--``Single nest''       annual burden hours      commercial.         commercial.        commercial.        commercial.        commercial.
 (formerly ``standard'') \4\.     approved under OMB
                                  Control No. 1018-0022.
                                 This rule revises fees   $150 Commercial...  $500--Commercial.  $600 \6\           $2,000 Commercial  +$1,400
                                  and nonhour costs.                                              Commercial.                           Commercial.
3-200-71 Amendment--Eagle        No. of responses and     $1,000 Commercial.  No Fee \7\.......  $1,000 Commercial  .................  - $1,000
 Incidental Take Programmatic.    annual burden hours                                                                                   Commercial.
                                  approved under OMB
                                  Control No. 1018-0022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  NEW REPORTING REQUIREMENT AND NEW ADMINISTRATION FEE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   22.26(c)(7)(ii)--Permit   No. of responses and     0.................  $8,000...........  0................  $32,000..........  +$32,000
 reviews. At no more than 5       annual burden hours
 years from the date a permit     shown in Item 12,
 that exceeds 5 years is          Table 1.
 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......................  .......................  ..................  .................  $92,250..........  $431,450.........  $359,200.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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 (standard and programmatic permits were combined)--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 (standard and programmatic permits were combined)--9 responses (1 from Individuals/homeowners (non-commercial) 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 rule, the homeowner fee would increase to $500; private sector fee (commercial)
  would increase to $5,000. Total for 1 homeowner--$500; total for 8 commercial--$40,000.

[[Page 91548]]

 
\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 rule, it is being removed because the costs associated
  with it would be included under the Administration Fee.
\8\ ROCIS would not allow entering negative $1,000 to account for the elimination of fees. Therefore, in ROCIS, the elimination is reflected for the
  eagle nest take amendment total nonhour cost burden.
\9\ This is a new reporting requirement as well as a new Administration Fee and applies only to Commercial permittees. 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 an $8,000 administration fee for each permittee for a total of $32,000. 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 Hour Burden: 23,304 hours, the total number of new 
respondents is 60.
    Estimated Total Hour Burden Cost: $798,395 for gathering 
information required to support an application, which may include 
preparation of an Eagle Conservation Plan (ECP). This includes 650 
hours for pre-construction monitoring surveys of eagle use of the 
project site and 700 hours of post-construction monitoring for each 
respondent. Preparation of the application, which may include 
preparation of an ECP, will take approximately 200 hours per 
respondent. These burden hours only apply to those seeking a long-term 
eagle take permit. In addition, those that receive a permit are 
required to report take of eagles and Threatened or Endangered species 
within 48 hours of discovery of the take. It is estimated that of the 
15 projects permitted to take eagles each year, 10 will actually take 
eagles, requiring 2 hours per respondent to report. Take of threatened 
or endangered species is expected to be a rare event, and occur at only 
one of the 15 projects permitted each year, requiring only 2 hours to 
report. The burden hours also include the costs for the 5-year permit 
review. We estimate 8 hours per respondent to complete the requirements 
of the permit review for a total of 32 hours.
    Estimated New Total Nonhour Burden Cost: $359,200 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.

Endangered and Threatened Species

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531-1544), requires Federal agencies to consult to ``insure 
that any action authorized, funded, or carried out'' by them ``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)). Intra-
Service consultations and conferences consider the effects of the 
Service's actions on listed, proposed, and candidate species. Our final 
action of issuing our regulations regarding take of non-ESA-listed 
eagles does not authorize, fund, or carry out any activity that may 
affect--directly or indirectly--any ESA-listed species or their 
critical habitat. See, e.g., Sierra Club v. Bureau of Land Mgmt., 786 
F.3d 1219 (9th Cir. 2015). Indeed, the Eagle Act does not empower us to 
authorize, fund, or carry out project activities by third parties. The 
Eagle Act empowers us to authorize take of bald and golden eagles. 
Thus, we have determined these revisions have no effect on any listed, 
proposed, or candidate species or their critical habitat. As a result, 
section 7 consultation is not required on this proposed action. As 
appropriate, we will conduct project-specific, intra-Service section 7 
consultations in the future if our proposed act of issuing a permit for 
take of eagles may affect ESA-listed species or critical habitat.

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 rule will not interfere with tribes' 
abilities to manage themselves, their funds, or tribal lands. In 
September of 2013, well before the Service published its notice of 
intent to develop a draft PEIS for the rule and held public scoping 
meetings, 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, we conducted webinars, group 
meetings, and meetings with individual Tribes. We 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 will be sufficiently protected under this rule 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 will 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.

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.
Huso. M.M.P. 2009. An estimator of wildlife fatality from observed 
carcasses. Environmetrics 22:318-329.
Kochert, M.N., Steenhof, K., 2012. Frequency of nest use by golden 
eagles in southwestern Idaho. J. Raptor Res. 46, 239-247. http://dx.doi.org/10.3356/JRR-12-00001.1.

[[Page 91549]]

Korner-Nievergelt F., Korner-Nievergelt P., Bher O., Niermann I., 
Brinkmann R., Hellriegel B. 2011. A new method to determine bird and 
bat fatality at wind energy turbines from carcass searches. Wildlife 
Biology 17:350-363.
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.
Millsap, B.A., T.G. Grubb, R.K. Murphy, T. Swem, and J.W. Watson. 
2015. Conservation significance of alternative nests of golden 
eagles. Global Ecology and Conservation 3:234-241.
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.
New, L., Bjerre, E., Millsap, B., Otto, M., Runge, M. 2015. A 
collision risk model to predict avian fatalities at wind facilities: 
An example using golden eagles, Aquila chrysaetos. http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0130978.
Nygaard, T., K. Bevanger, E. Lie Dahl, [Oslash]. Flagstad, A. 
Follestad, P.L. Hoel, R. May, and O. Reitan. 2010. A study of the 
White-tailed eagle Haliaeetus albicilla movements and mortality at a 
wind farm in Norway. BOU Proceedings-Climate Change and Birds. 
British Ornithologists' Union. http://www.bou.org.uk/bouproc-net/ccb/nygard-etal.pdf.
U.S. Fish and Wildlife Service. 2007. National Bald Eagle Management 
Guidelines. Division of Migratory Bird Management. http://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. 
http://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. 2013b. Issuance of a Bald and Golden 
Eagle Act permit to take golden eagles to the Hopi Tribe for Native 
American religious purposes. Amended Environmental Assessment. 
Division of Migratory Bird Management, Southwest Region. https://www.fws.gov/southwest/migratorybirds/docs/Revised%20Final_EA%204_24_2013%20complete.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.
Watts, B.D. 2015. Estimating the residual value of alternate bald 
eagle nests: Implications for nest protection standards. The Journal 
of Wildlife Management 79:776-784.
Williams, B.K., J.D. Nichols, and M.J. Conroy. 2002. Analysis and 
management of animal populations: Modeling, estimation, and decision 
making. Academic Press, San Diego, California USA.

List of Subjects

50 CFR Part 13

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

50 CFR Part 22

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

Regulation Promulgation

    For the reasons described in the preamble, we hereby 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. Amend the table in Sec.  13.11(d)(4) by:
0
a. Removing the column with the heading ``Administration fee \1\''; and
0
b. Revising the section ``Bald and Golden Eagle Protection Act'' and 
footnote 1.
    The revision reads 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
 Commercial.
Eagle Incidental Take--Non-commercial..  50 CFR part 22...........  500.........................             150
Eagle Incidental Take--5-30 years \1\..  50 CFR part 22...........  36,000 \1\..................  ..............
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
 Commercial.
Eagle Nest Take--Single nest, Non-       50 CFR part 22...........  500.........................             150
 commercial.
Eagle Nest Take--Multiple nests........  50 CFR part 22...........  5,000.......................             500
Eagle Take--Exempted under ESA.........  50 CFR part 22...........  No fee......................  ..............
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ An additional Administration Fee of $8,000 will be assessed every 5 years for permits with durations longer
  than 5 years for permit review.

* * * * *

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:

[[Page 91550]]

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 (EMU)'';
0
e. Revising the definition of ``Eagle nest'';
0
f. Removing the definition of ``Inactive nest'';
0
g. Adding definitions for ``In-use nest'' and ``Local area population 
(LAP)'';
0
h. Removing the definition of ``Maximum degree achievable'';
0
i. Adding a definition for ``Nesting territory'';
0
j. Revising the definition of ``Practicable''; and
0
k. 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 an in-use nest at the current time. When 
there is no in-use 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 the 
persistence of local populations throughout the geographic range of 
each species.
* * * * *
    Eagle management unit (EMU) means a geographically bounded region 
within which permitted take is regulated to meet the management goal of 
maintaining stable or increasing breeding populations of bald or golden 
eagles.
    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 eagles and the activity's 
overall purpose, scope, and scale.
* * * * *


Sec.  22.4  [Amended]

0
 5. In Sec.  22.4, amend paragraph (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. Revising the first sentence in paragraph (c) introductory text;
0
i. Removing paragraphs (c)(3) and (6), and redesignating paragraphs 
(c)(4) and (5) as paragraphs (c)(3) and (4); and
0
j. Revising newly redesignated 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) Issuance criteria. The Director shall conduct an investigation 
and not issue a permit to take any golden eagle nest unless such taking 
is compatible with the preservation of golden eagles. * * *
* * * * *
    (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 
reoccupation by golden eagles of the resource development or recovery 
site. Mitigation measures may include, but are not limited to, 
reclaiming disturbed land to

[[Page 91551]]

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), 
adding new paragraph (c)(7), and revising newly redesignated paragraphs 
(c)(8), (9), and (11);
0
c. Revising paragraph (d)(2);
0
d. Adding paragraph (d)(3);
0
e. Revising paragraph (e)(1);
0
f. Redesignating paragraphs (e)(3), (4), and (5) as paragraphs (e)(5), 
(7), and (9), and adding new paragraphs (e)(3), (4), (6), and (8);
0
g. Revising newly redesignated paragraphs (e)(5) and (e)(7)(i) through 
(iv);
0
h. Removing newly redesignated paragraph (e)(7)(v); and
0
i. Revising paragraphs (f), (h) and (i).
    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 and 
cumulative effects, of the permitted take.
    (i) Compensatory mitigation scaled to project impacts will be 
required for any permit authorizing take that would exceed the 
applicable eagle management unit 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 the 
eagle population 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 eagle management unit during part of 
their seasonal migration;
    (C) Use the best available science in formulating and monitoring 
the long-term effectiveness of mitigation measures and use rigorous 
compliance and effectiveness monitoring and evaluation to make certain 
that mitigation measures achieve their intended outcomes, or that 
necessary changes are implemented to achieve them;
    (D) Be additional and improve upon the baseline conditions of the 
affected eagle species in a manner that is demonstrably new and would 
not have occurred without the compensatory mitigation (voluntary 
actions taken in anticipation of meeting compensatory mitigation 
requirements for an eagle take permit not yet granted may be credited 
toward compensatory mitigation requirements);
    (E) Be durable and, at a minimum, maintain its intended purpose for 
as long as impacts of the authorized take persist; and
    (F) Include mechanisms to account for and address uncertainty and 
risk of failure of a compensatory mitigation measure.
    (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 impacts to 
eagles from the permitted activity 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 cause take, periodic monitoring 
will 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. Your permit may require that the 
monitoring be conducted by qualified, independent third parties that 
report directly to the Service.
    (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) Monitoring. Monitoring to assess project impacts to eagles 
and the effectiveness of avoidance and minimization measures must be 
conducted by qualified, independent third parties, approved by the 
Service. Monitors must report directly to the Service and provide a 
copy of the reports and materials to the permittee.
    (ii) Adaptive management. The permit will specify circumstances 
under which modifications to avoidance, minimization, or compensatory 
mitigation measures or monitoring protocols will be required, which may 
include, but are not limited to: Take levels, location of take, and 
changes in eagle use of the activity area. At a minimum, the permit 
must specify actions to be taken if take approaches or reaches the 
amount authorized and anticipated within a given time frame. Adaptive 
management terms in a permit will include review periods of no more 
than 5 years and may require prompt action(s) upon reaching specified

[[Page 91552]]

conditions at any time during the review period.
    (iii) Permit reviews. At no more than 5 years from the date a 
permit that exceeds 5 years is issued, and at least 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 this information, as well as information provided directly to 
the Service by independent monitors, to determine whether:
    (A) The permittee is in compliance with the terms and conditions of 
the permit and has implemented all applicable adaptive management 
measures specified in the permit; and
    (B) Eagle take does not exceed the amount authorized to occur 
within the period of review.
    (iv) Actions to be taken based on the permit review. (A) In 
consultation with the permittee, the Service will update fatality 
predictions, authorized take levels and compensatory mitigation for 
future years, taking into account the observed levels of take based on 
approved protocols for monitoring and estimating total take, and, if 
applicable, accounting for changes in operations or permit conditions 
pursuant to the adaptive management measures specified in the permit or 
made pursuant to paragraphs (c)(7)(iv)(B) through (D) of this section.
    (B) If authorized take levels for the period of review are exceeded 
in a manner or to a degree not addressed in the adaptive management 
conditions of the permit, based on the observed levels of take using 
approved protocols for monitoring and estimating total take, the 
Service may require additional actions including but not limited to:
    (1) Adding, removing, or adjusting avoidance, minimization, or 
compensatory mitigation measures;
    (2) Modifying adaptive management conditions;
    (3) Modifying monitoring requirements; and
    (4) Suspending or revoking the permit in accordance with part 13 of 
this subchapter B.
    (C) If the observed levels of take, using approved protocols for 
monitoring and estimating total take, are below the authorized take 
levels for the period of review, the Service will proportionately 
revise the amount of compensatory mitigation required for the next 
period of review, including crediting excess compensatory mitigation 
already provided by applying it to the next period of review.
    (D) Provided the permittee implements all required actions and 
remains compliant with the terms and conditions of the permit, no other 
action is required. However, with consent of the permittee, the Service 
may make additional changes to a permit, including appropriate 
modifications to avoidance and/or minimization measures or monitoring 
requirements. If measures are adopted that have been shown to be 
effective in reducing risk to eagles, appropriate adjustments will be 
made in fatality predictions, take estimates, and compensatory 
mitigation.
    (v) Fees. For permits with terms longer than 5 years, an 
administration fee of $8,000 will be assessed every 5 years for permit 
review.
    (8) The Service may amend, suspend, or revoke a permit issued under 
this section if new information indicates that revised permit 
conditions are necessary, or that suspension or revocation is 
necessary, to safeguard local or regional eagle populations. This 
provision is in addition to the general criteria for amendment, 
suspension, and revocation of Federal permits set forth in Sec. Sec.  
13.23, 13.27, and 13.28 of this chapter.
    (9) Notwithstanding the provisions of Sec.  13.26 of this chapter, 
you remain responsible for all outstanding monitoring requirements and 
mitigation measures required under the terms of the permit for take 
that occurs prior to cancellation, expiration, suspension, or 
revocation of the permit.
* * * * *
    (11) You are responsible for ensuring that the permitted activity 
is in compliance with all Federal, Tribal, State, and local laws and 
regulations applicable to eagles.
    (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) Except as set forth in paragraph (d)(3)(ii) of this section, an 
applicant 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 the 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.
    (ii) Applications for eagle incidental take permits for wind 
facilities must include pre-construction eagle survey information 
collected according to the following standards, unless exceptional 
circumstances apply and survey requirements can be modified to 
accommodate those circumstances after consultation with, and written 
concurrence by, the Service:
    (A) Surveys must consist of point[hyphen]based recordings of bald 
eagle and golden eagle flight activity (minutes of flight) within a 
three-dimensional cylindrical plot (the sample plot). The radius of the 
sample plot is 2,625 feet (ft) (800 meters (m)), and the height above 
ground level must be either 656 ft (200 m) or 82 ft (25 m) above the 
maximum blade reach, whichever is greater.
    (B) The duration of the survey for each visit to each sample plot 
must be at least 1 hour.
    (C) Sampling must include at least 12 hours per sample plot per 
year for 2 or more years. Each sample plot must be sampled at least 
once per month, and the survey start time for a sampling period must be 
selected randomly from daylight hours,\1\ unless the conditions in 
paragraph (d)(3)(ii)(F) of this section apply.
---------------------------------------------------------------------------

    \1\ Daylight hours are defined as the hours between sunrise and 
sunset.
---------------------------------------------------------------------------

    (D) Sampling design must be spatially representative of the project 
footprint,\2\ and spatial coverage of sample plots must include at 
least 30 percent of the project footprint. Sample plot locations must 
be determined randomly, unless the conditions in paragraph 
(d)(3)(ii)(F) of this section apply.
---------------------------------------------------------------------------

    \2\ The project footprint is the minimum[hyphen]convex polygon 
that encompasses the wind[hyphen]project area inclusive of the 
hazardous area around all turbines and any associated utility 
infrastructure, roads, etc.
---------------------------------------------------------------------------

    (E) The permit application package must contain the following:
    (1) Coordinates of each sample point in decimal degrees (specify 
projection/datum).
    (2) The radius and height of each sample plot.
    (3) The proportion of each three-dimensional sample plot that was 
observable from the sample point for each survey.
    (4) Dates, times, and weather conditions for each survey, to 
include the time surveys at each sample point began and ended.
    (5) Information for each survey on the number of eagles by species 
observed (both in flight and perched), and the amount of flight time 
(minutes) that each was in the sample plot area.

[[Page 91553]]

    (6) The number of proposed turbines and their specifications, 
including brand/model, rotor diameter, hub height, and maximum blade 
reach (height), or the range of possible options.
    (7) Coordinates of the proposed turbine locations in decimal 
degrees (specify projection/datum), including any alternate sites.
    (F) Stratified-random sampling (a sample design that accounts for 
variation in eagle abundance by, for example, habitat, time of day, 
season) will often provide more robust, efficient sampling. Random 
sampling with respect to time of day, month, or project footprint can 
be waived if stratification is determined to be a preferable sampling 
strategy after consultation and approval in advance with the Service.
    (iii) Application of the Service-endorsed data quality standards of 
paragraphs (d)(3)(i) and (ii) 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.
    (6) Whether the applicant has proposed compensatory mitigation 
measures that comply with standards set forth under paragraph (c)(1) of 
this section 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 taking eagles 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) Required determinations. Before we issue a permit, we must find 
that:
    (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 the eagle populations within the 
eagle management unit and the local area population, are compatible 
with the preservation of bald eagles and golden eagles.
    (2) The taking is necessary to protect an interest in a particular 
locality.
    (3) The taking is associated with, but not the purpose of, the 
activity.
    (4) The applicant has applied all appropriate and practicable 
avoidance and minimization measures to reduce impacts to eagles.
    (5) 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.
    (6) 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.
    (7) 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.
    (i) Applicants for eagle incidental take permits who submit a 
completed permit application by July 14, 2017 may elect to apply for 
coverage under the regulations that were in effect prior to January 17, 
2017 provided that the permit application satisfies the permit 
application requirements of the regulations in effect prior to January 
17, 2017. If the Service issues a permit to such applicants, all of the 
provisions and conditions of the regulations that were in effect prior 
to January 17, 2017 will apply.

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), adding a new paragraph (b)(8), and revising newly 
designated paragraph (b)(11); and
0
c. Revising paragraphs (e)(1), (e)(2) introductory text, (e)(2)(ii) and 
(iii), and (e)(3) 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 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

[[Page 91554]]

    (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 and 
cumulative effects, of the permitted take.
    (8) Compensatory mitigation scaled to project impacts will be 
required for any permit authorizing take that would exceed the 
applicable eagle management unit take limits. Compensatory mitigation 
must conform to the standards set forth at Sec.  22.26(c)(1)(iii). 
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 indicate that cumulative unauthorized 
mortality would exceed 10 percent of the local area population; or
    (iii) 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.
* * * * *
    (11) You are responsible for ensuring that the permitted activity 
is in compliance with all Federal, Tribal, State, and local laws and 
regulations applicable to eagles.
* * * * *
    (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 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 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 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 taking eagles 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: December 8, 2016.
 Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-29908 Filed 12-14-16; 8:45 am]
 BILLING CODE 4333-15-P