Permits for Incidental Take of Eagles and Eagle Nests, 59598-59631 [2022-21025]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Proposed Rules]
[Pages 59598-59631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21025]



[[Page 59597]]

Vol. 87

Friday,

No. 189

September 30, 2022

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Parts 13 and 22





Permits for Incidental Take of Eagles and Eagle Nests; Proposed Rule

Federal Register / Vol. 87, No. 189 / Friday, September 30, 2022 / 
Proposed Rules

[[Page 59598]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 22

[Docket No. FWS-HQ-MB-2020-0023; FF09M30000-223-FXMB12320900000]
RIN 1018-BE70


Permits for Incidental Take of Eagles and Eagle Nests

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose the following revisions to regulations authorizing the issuance 
of permits for eagle incidental take and eagle nest take. The purpose 
of these revisions is to increase the efficiency and effectiveness of 
permitting, facilitate and improve compliance, and increase the 
conservation benefit for eagles. In addition to continuing to authorize 
specific permits, we propose the creation of general permits for 
certain activities under prescribed conditions. We propose a general 
permit option for qualifying wind-energy generation projects, power 
line infrastructure, activities that may disturb breeding bald eagles, 
and bald eagle nest take. We propose to remove the current third-party 
monitoring requirement from eagle incidental take permits. We also 
propose to update current permit fees and clarify definitions.

DATES: Comment submission: This proposed rule, draft environmental 
review, and accompanying documents in the docket are available for 
public review and comment through November 29, 2022.
    Information sessions: We will hold four information sessions in 
webinar format: two for members of federally recognized Native American 
Tribes and two for the general public. See Public Comments below under 
SUPPLEMENTARY INFORMATION for details.
    Information collection requirements: If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
proposed rule between 30 and 60 days after publication of this proposed 
rule in the Federal Register. Therefore, comments should be submitted 
to the Service Information Collection Clearance Officer, U.S. Fish and 
Wildlife Service, (see ``Information Collection'' section below under 
ADDRESSES) by November 29, 2022.

ADDRESSES: Document availability: Supplementary documents to this 
rulemaking action, including a draft environmental review and list of 
references cited, are available at https://www.regulations.gov in 
Docket No. FWS-HQ-MB-2020-0023. Documents and additional information 
can also be found at: https://www.fws.gov/regulations/eagle.
    Comment submission: You may submit written comments on this 
proposed rule and draft environmental review by one of the following 
methods:
     Electronically at the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments to 
Docket No. FWS-HQ-MB-2020-0023.
     By hard copy via U.S. mail: Public Comments Processing, 
Attn: FWS-HQ-MB-2020-0023; U.S. Fish and Wildlife Service; MS: PRB/3W; 
5275 Leesburg Pike; Falls Church, VA 22041-3803.
    We will post all comments on https://www.regulations.gov, including 
any personal information you provide. See Public Availability of 
Comments below under SUPPLEMENTARY INFORMATION for further information.
    Information collection requirements: Send your comments on the 
information collection request by mail to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email 
to [email protected]; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference OMB Control Number 
1018-0167 in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director--
Migratory Birds Program, U.S. Fish and Wildlife Service, telephone: 
(703) 358-2606, email: [email protected]. Individuals in the United 
States who are deaf, deafblind, hard of hearing, or have a speech 
disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Fish and Wildlife Service (Service) is the Federal agency 
delegated with the primary responsibility for managing bald eagles 
(Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos) under 
the Bald and Golden Eagle Protection Act 16 U.S.C. 668-668d; 
[hereinafter the ``Eagle Act'']). The Eagle Act prohibits the take, 
possession, and transportation 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 when ``necessary . . . for the 
protection of other interests in any particular locality,'' provided 
the taking is compatible with the preservation of eagles (16 U.S.C. 
668a). Regulations pertaining to eagle permits are set forth in title 
50 of the Code of Federal Regulations (CFR) at 50 CFR part 22.
    In 2009, subsequent to the delisting of the bald eagle from the 
List of Endangered and Threatened Wildlife at 50 CFR 17.11, the Service 
promulgated regulations (74 FR 46836, Sept. 11, 2009 [hereinafter the 
``2009 Eagle Rule'']) at 50 CFR part 22 that established two new permit 
types for the incidental take of eagles and eagle nests. Incidental 
take means foreseeable take that results from, but is not the purpose 
of, the activity. These regulations were originally located at 50 CFR 
22.26 and 22.27 but were later moved to 50 CFR 22.80 and 22.85 during a 
general reorganization of our migratory bird and eagle permit 
regulations (87 FR 876, January 7, 2022).
    In 2016, the Service finalized a rule (81 FR 91494, December 16, 
2016 [hereinafter the ``2016 Eagle Rule'']) revising the 2009 Eagle 
Rule that, among other things:
    (1) extended the maximum tenure of permits for the incidental take 
of eagles from 5 to 30 years;
    (2) updated the boundaries to the Service's Eagle Management Units 
(EMUs) to better reflect regional populations and migration patterns of 
both eagle species;
    (3) imposed preconstruction monitoring requirements for wind-energy 
projects applying for incidental take permits;
    (4) amended the preservation standard (discussed below); and
    (5) imposed a new requirement to analyze cumulative-authorized and 
known-unauthorized take at local scales to ensure compliance with the 
preservation standard. This rulemaking was supported by a programmatic 
environmental impact statement (PEIS), and the Service's final decision 
was described in a record of decision, both of which are available at 
https://www.regulations.gov in Docket No. FWS-R9-MB-2011-0094.
    On September 14, 2021, the Service published an advance notice of 
proposed rulemaking (ANPR) to inform the public of changes the Service 
is

[[Page 59599]]

considering that expedite and simplify the permit process authorizing 
incidental take of eagles (86 FR 51094). The ANPR also advised the 
public that the Service may prepare a draft environmental review 
pursuant to the National Environmental Policy Act of 1969, as amended. 
In the ANPR, we invited input from Tribes, as well as Federal agencies, 
State agencies, nongovernmental organizations, and the general public 
for any pertinent issues we should address, including alternatives to 
our proposed approach for authorizing eagle incidental take. The public 
comment period closed on October 29, 2021.
    During the public comment period, we received 1,899 distinct 
comments on the ANPR. Many comments included additional attachments 
(e.g., scanned letters and supporting documents). These comments 
represented the views of Native American Tribes, multiple Federal and 
State agencies, private industries, nongovernmental organizations, and 
private citizens. In addition to the individual comments received, 
multiple organizations submitted attachments representing individuals' 
comments, form letters, and signatories to petition-like letters 
representing 1,804 signers.
    Many comments expressed concerns with the efficiency of the current 
permitting process, including the lack of capacity within the Service 
to review and issue permits and the extensive processing times. 
Similarly, most comments supported the idea of a general permit program 
to streamline the process and provide more timely and cost-effective 
coverage for industry. Concerns were also raised about monitoring and 
reporting requirements. Several comments expressed opposition to third-
party or pooled monitoring approaches, while others suggested the 
Service require permittees to implement a regular, standardized 
monitoring protocol with annual reporting requirements.
    In drafting this proposed rule, we considered the comments received 
on the ANPR.

Preservation Standard

    For this proposed rulemaking, we do not propose any changes to the 
current preservation standard or management objectives. The Eagle Act 
requires that any authorized take of eagles be ``compatible with the 
preservation'' of bald and golden eagles (16 U.S.C. 668a). Under 
existing regulations, the preservation standard is defined as 
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 (50 CFR 
22.6). 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 baseline set in the 2009 Eagle Rule. 
``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 (see 2016 PEIS). The 2016 PEIS and 2016 Eagle Rule describe two 
management objectives for ensuring the Service's 2016 preservation 
standard is met for eagles. These management objectives are: (1) 
maintain stable or increasing populations of both eagle species within 
EMUs, and (2) maintain the persistence of local area populations of 
both eagle species. Both objectives continue to use 2009 as the 
baseline, for 100 years into the future.

Population Status of Bald Eagles and Golden Eagles

    We propose different management criteria for bald eagles and golden 
eagles because of the different population statuses and growth rates of 
each species. We determined this approach is necessary both to achieve 
the preservation standard and to avoid being unnecessarily restrictive. 
The Service recently updated population size estimates and allowable 
take limits for bald eagles (87 FR 5493, February 1, 2022). That 
document included data from 2019 estimating the population of bald 
eagles in the coterminous United States to be 316,708, a four-fold 
increase above our previously published estimate in 2016. Bald eagle 
populations in most EMUs have been growing at the rate of 10 percent 
per year. The current population size estimate for the coterminous 
United States is approximately 336,000, with a nationwide take limit of 
19,623 bald eagles. Conversely, golden eagle population trends through 
2016 appear relatively stable. However, information on anthropogenic 
mortality rates suggests unpermitted take likely exceeds what is 
compatible with long-term population stability of golden eagles. The 
estimated U.S. population size for golden eagles remains approximately 
38,000, which is less than the bald eagle population of 336,000 by an 
order of magnitude. The golden eagle take limit remains set at zero, 
unless offset with compensatory mitigation, because available 
information indicates that additional take of golden eagles without 
offsetting compensatory mitigation is likely to decrease the population 
and not be compatible with the preservation of golden eagles (Analysis 
of the effects of potential general permit scenarios on bald and golden 
eagles, (2022). Division of Migratory Bird Management, U.S. Fish and 
Wildlife Service, Washington, DC, USA.).

This Rulemaking

Overview

    The Service proposes a new subpart E within 50 CFR part 22 for 
eagle permit regulations authorizing take that is necessary for the 
protection of other interests in any particular locality (eagle take 
for other interests). This proposed new subpart includes revised 
provisions for processing specific permits (sometimes called individual 
permits) and adds a general-permit alternative for qualifying 
activities. General permits would be available to authorize incidental 
take by activities, consistent with the preservation standard, that 
occur frequently enough for the Service to have developed a 
standardized approach to permitting. The proposed regulations also 
restructure the existing specific permit regulations for eagle take 
that is associated with, but not the purpose of, an activity (50 CFR 
22.80) and removal of eagle nests (50 CFR 22.85). We propose amendments 
to these regulations to better align with the purpose and need 
described in the 2016 PEIS. In the 2016 Eagle Rule, the Service sought 
to:
    (1) increase compliance by simplifying the permitting framework and 
increasing certainty;
    (2) allow for consistent and efficient administration of the 
program by Service staff;
    (3) regulate based on best available science and data; and
    (4) enhance protection of eagles throughout their ranges by 
increasing implementation of avoidance, minimization, and mitigation of 
adverse impacts from human activities.
    Since implementation of the 2016 Eagle Rule, it has become clear 
that the Service's amended permitting structure did not fully achieve 
the goals of the 2016 PEIS. For bald eagles, populations have continued 
to grow. While this is good news in terms of preserving the species, it 
also means that bald eagles are interacting more often with human 
activities and infrastructure, resulting in a higher demand for permits 
authorizing the disturbance take and nest take of bald eagles. The 
current permit framework places an administrative burden on the public 
and the Service that is not commensurate with what is

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required to effectively preserve bald eagles. For golden eagles, a goal 
of the 2016 Eagle Rule was to increase compliance and improve 
consistency and efficiency relating to permitting golden eagle take at 
wind-energy projects. However, those goals have not been realized. 
While participation in the permit program by wind energy projects has 
increased since 2016, it still remains well below our expectations. Low 
application rates and permit-processing requirements that some have 
perceived as burdensome have resulted in few permits being issued for 
wind projects as compared to the number of operational wind projects in 
areas where golden eagles occur. As a result, golden eagles continue to 
be taken without implementation of conservation actions to offset that 
take.
    In this rulemaking, we propose a new subpart E for regulations 
governing the permitting of eagle take for other interests. We propose 
two regulations for administering permitting: specific permits 
(proposed Sec.  22.200) and general permits (proposed Sec.  22.210). We 
further propose to specify activity-specific eligibility criteria and 
permit requirements in four sections based on activity and type of 
eagle take:
    [ballot] incidental take for permitting wind energy (proposed Sec.  
22.250),
    [ballot] incidental take for permitting power lines (proposed Sec.  
22.260),
    [ballot] disturbance take (proposed Sec.  22.280), and
    [ballot] nest take (proposed Sec.  22.300).
    The specific permit and general permit regulations are the 
governing regulations and contain the information that is the same for 
all activities and types of take. Currently, multiple different 
activities are consolidated into one regulation. This has resulted in 
complex and potentially confusing regulations. To improve clarity and 
transparency, we propose four additional regulations for these 
activities that contain activity-specific provisions beyond the general 
requirements for administering specific permits and general permits. We 
incorporated most of the existing requirements currently authorized 
under Sec. Sec.  22.80 and 22.85 in the proposed subpart E 
regulations--the notable exception being the third-party monitoring 
requirement, which is currently in Sec.  22.80, which we are not 
carrying over for the reasons discussed below.
    For clarity and consistency, we also propose to move regulatory 
content on permit conditions to a new section (Sec.  22.215) and to 
move content on compensatory mitigation standards to a new section 
(Sec.  22.220). We propose new definitions to define ``general permit'' 
and ``incidental take'' and clarifying modifications to the definitions 
of ``eagle management unit,'' ``eagle nest,'' and ``in-use nest'' 
(Sec.  22.6). We propose redesignation of related regulations 
pertaining to permit requirements for take of golden eagle nests 
(currently at Sec.  22.75 and proposed to move to Sec.  22.325) and 
permits for bald eagle take exempted under the Endangered Species Act 
(currently at Sec.  22.90 and proposed to move to Sec.  22.400) to a 
new subpart E, with only the modification of a non-substantive change 
to the section title for proposed Sec.  22.325. Finally, we propose 
administrative updates to 50 CFR part 13, General Permit Procedures, to 
update the text regarding information collection requirements and the 
table of application fees. These proposed changes to the locations of 
current regulations are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                  Proposed new
                                                                                                 sections in 50
         Current regulations now in  50 CFR part 22              Regulatory subject matter        CFR part 22,
                                                                                                    subpart E
----------------------------------------------------------------------------------------------------------------
Sec.  Sec.   22.80 and 22.85...............................  Specific permits.................     Sec.   22.200
                                                             General permits..................     Sec.   22.210
Sec.  Sec.   22.80 and 22.85...............................  Permit conditions................     Sec.   22.215
Sec.   22.80...............................................  Compensatory mitigation..........     Sec.   22.220
Sec.   22.80...............................................  Wind energy project incidental        Sec.   22.250
                                                              take.
Sec.   22.80...............................................  Power line incidental take.......     Sec.   22.260
Sec.   22.80...............................................  Eagle disturbance take...........     Sec.   22.280
Sec.   22.85...............................................  Eagle nest take..................     Sec.   22.300
Sec.   22.75...............................................  Golden eagle nest take for            Sec.   22.325
                                                              resource development.
Sec.   22.90...............................................  Bald eagle take exempted under        Sec.   22.400
                                                              the Endangered Species Act.
----------------------------------------------------------------------------------------------------------------

Specific Permits and General Permits for Eagle Take

    Specific permits are the current approach to permitting eagle take. 
An applicant prepares an application, which is submitted to the 
Service. The Service reviews the application and determines whether to 
issue a permit. If the Service issues a permit, it includes permit 
conditions specific to the project. The Service proposes to retain the 
specific-permit approach for situations that have high or uncertain 
risks to eagles, thus maintaining an administrative burden that is 
commensurate with meeting the preservation standard for eagles.
    The Service proposes general permits as an alternative approach to 
authorization for projects that meet eligibility criteria. The purpose 
of general permits is to simplify and expedite the permitting process 
for activities that have relatively consistent and low effects on 
eagles and well-established avoidance, minimization, compensatory 
mitigation, monitoring, and other permit conditions where take may be 
authorized without site-specific analysis. General-permit applicants 
would self-identify eligibility and register with the Service, 
including providing required application information and fees, as well 
as certify that they meet eligibility criteria and will implement 
permit conditions and reporting requirements. We will continue to fine-
tune, and consider public input on, eligibility criteria for all 
general-permit categories included in this proposed rule to ensure that 
general permits effectively simplify and expedite the permit process 
for eligible projects while meeting the Eagle Protection Act's 
preservation standard. Service review is not required prior to 
obtaining a permit. Instead, a general permit is generated using permit 
conditions and reporting requirements for the activity. The Service 
intends to conduct annual audits for a small percentage of all general 
permits to ensure applicants are appropriately interpreting and 
applying eligibility criteria. The general-permit approach to 
authorizing eagle take requires the same compliance with the Eagle 
Act's preservation standard as specific permits but reduces the 
administrative burden in obtaining a permit. The

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Service proposes to make general-permit conditions publicly available, 
so applicants understand permit requirements prior to application.
    The Service proposes using general permits for the following 
activities: (1) certain categories of bald eagle nest take, (2) certain 
activities that may cause bald eagle disturbance take, (3) eagle 
incidental take associated with power-line infrastructure, and (4) 
eagle incidental take associated with certain wind-energy projects. We 
will use the following mechanisms to ensure that general permits remain 
consistent with the preservation of bald and golden eagles: eligibility 
criteria, program-scale monitoring, reporting, compensatory-mitigation 
requirements, and a program-suspension clause if concern arises 
regarding the preservation of eagles. We propose to include Service 
monitoring costs necessary to support implementation of the general 
permit framework as part of the proposed general permit application and 
administration fees. We would use those fees for program-scale 
monitoring (in place of current project-scale monitoring required of 
the permittee) to verify that the general-permit program is compatible 
with the preservation of eagles and to better understand program 
impacts. The Service intends to compile information on general permits 
issued on an annual basis. This information, in accordance with privacy 
laws, may be made available to Tribes, States, and other interested 
parties that wish to know more about general-permit activities 
occurring in their area. If monitoring or other information indicates 
that continuing implementation of a general permit is inconsistent with 
the preservation of bald eagles or golden eagles, the Service may 
suspend the general program temporarily or indefinitely. This 
suspension may apply to all or part of general-permit authorizations.

Consistency With 2016 PEIS

    We would implement continued population and program-wide monitoring 
and require project-scale reporting conducted by permittees to ensure 
that the proposed general-permit program will be consistent with our 
eagle preservation standard. Consistent with our 2016 Eagle Rule and 
the 2016 PEIS, we will continue to require compensatory mitigation for 
any authorized take of eagles exceeding EMU take limits and assess 
whether additional compensatory mitigation is necessary to ensure 
authorized take in excess of local area population (LAP) thresholds is 
compatible with the preservation of eagles. The best available 
information indicates that, although golden eagle populations over much 
of the United States were stable through 2016, ongoing levels of human-
caused mortality likely exceed levels compatible with maintaining 
population stability, potentially substantially. Further increases in 
mortality would very likely cause population decline and therefore not 
meet the Service's preservation goal of a stable or increasing breeding 
population. As a result, the Service will maintain take limits for 
golden eagles at zero throughout their U.S. range and require 
compensatory mitigation to offset any authorized take of golden eagles. 
We will continue to require the current minimum offset ratio of 1.2 to 
1 for any authorized killing/injury of golden eagles. This baseline 
mitigation ratio appropriately balances our obligations under the Eagle 
Act with reasonable, fair, and practicable requirements for permittees.
    The 2016 PEIS described how the Service would consider permitted 
take at the LAP scale and when compensatory mitigation might be 
appropriate. We will continue to track estimates of authorized take 
spatially under the general permits and use this information to 
identify potential LAPs of concern. In the event an LAP of concern is 
identified, the Service would direct Service-approved in-lieu fee 
programs to target investments in compensatory mitigation to the LAP of 
concern. LAP mitigation is built into the required mitigation cost 
under all general permits for wind facilities; thus, the cost of this 
mitigation is shared across general permittees. We propose to continue 
site-specific evaluation of a project's impacts on eagles for specific 
permits.
    The 2016 Eagle Rule introduced a requirement that independent third 
parties must conduct monitoring associated with long-term permits for 
incidental take of eagles. In implementing the 2016 Eagle Rule, this 
requirement has proven impracticable to implement at some projects for 
a variety of factors, including health, safety, liability, and access 
issues for project sites that are leased from multiple private 
landowners. The Service proposes to remove this requirement. Instead, 
the Service would rely on the requirement in 50 CFR 13.12(a)(5) that 
the permittee must certify that the information submitted is complete 
and accurate to the best of their knowledge and belief subject to 
criminal penalty under 18 U.S.C. 1001. All information submitted with 
applications for permits from the Federal Government or required 
reports is subject to this statutory provision. Any demonstration or 
finding of falsified reports or underreporting will result in general 
permit suspension or revocation and referral to the Service's Office of 
Law Enforcement. We anticipate reference to this criminal provision 
will ensure that permittees provide the Service with accurate 
monitoring information without the need to require third-party 
monitoring.
    The 2016 Eagle Rule, along with the availability of permits with a 
tenure up to 30 years, also introduced a requirement that permittees 
will participate in permit reviews with the Service at intervals not to 
exceed once every 5 years. The Service introduced these mandatory 
reviews to ensure that the Service had an opportunity to receive and 
review all existing data related to a long-term activity's impacts on 
eagles. It was intended that the Service would use this information to, 
if necessary, recalculate fatality estimates and authorization levels, 
and amend permit conditions such as mitigation requirements. Over the 
last several years, the Service has heard complaints from the regulated 
community that these scheduled reviews introduced uncertainty into 
project planning and funding and have discouraged potential applicants 
from participating or have influenced the permit tenure requested by 
the applicant. The Service proposes to remove this regulatory 
requirement. Removal of these administrative check-ins would increase 
certainty for applicants that are concerned about the potential for 
unknown amendments to permit conditions every 5 years and is intended 
to increase participation in eagle take permitting. The Service instead 
intends to hold the amount of take authorized under a long-term 
specific permit constant unless the permittee requests an amendment, or 
unless the Service determines that an amendment is necessary and 
required under 50 CFR 22.200(e). Third parties, including Tribes, 
States, and the general public, may contact the Service if they have 
concerns about compliance with permit terms at a particular project or 
new information that may bear on the conditions of the permit. The 
Service may initiate a permit review based on information received from 
third parties.

Eagle Incidental Take Permits for Wind Energy

    Wind energy facilities incidentally take bald and golden eagles by 
injuring or killing eagles that collide with turbines. Applications for 
and issuance of permits authorizing incidental take of eagles at wind-
energy projects has not

[[Page 59602]]

kept pace with this rapidly growing industry. While there are more than 
1,000 wind-energy projects on the landscape, the Service has received 
fewer than 100 applications from those projects and has currently 
issued only 26 permits since promulgation of the 2016 Eagle Rule. We 
propose amendments to the current regulations to encourage broader 
participation in permitting by providing applicants with greater 
certainty and simplicity in applying for both general and specific 
permits. We anticipate in turn that eagle populations will benefit 
significantly from many more projects complying with avoidance, 
minimization, and mitigation requirements.
    We propose new regulations at 50 CFR 22.250 to authorize the 
incidental take of eagles as part of wind-energy project operations. 
This proposed regulation would include the provisions of the 
regulations currently at 50 CFR 22.80 (permits for eagle take 
associated with, but not the purpose of, an activity) that apply to 
wind-energy generation activities with revisions. We also propose 
general permit eligibility criteria for projects located in areas where 
the risk to eagles is lower. We propose these changes to improve 
clarity and reduce complexity while retaining the core requirements of 
implementing practicable avoidance and minimization measures to reduce 
impacts, implementing appropriate compensatory mitigation, and ensuring 
the permitted take is compatible with the preservation of bald eagles 
and golden eagles. The Service will continue to consider revisions to 
our proposed general-permit eligibility criteria and other possible 
criteria that meet the preservation standard. With the creation of this 
new wind-energy regulation and other regulations described below, we 
also propose removal of 50 CFR 22.80.
    The Service proposes to use relative eagle abundance as an 
eligibility standard for wind-energy general permits. Siting of wind 
energy projects in areas where fewer eagles occur remains the best 
method to avoid and minimize eagle take. The greater the abundance of 
eagles in the area where a project is located, the greater the 
likelihood of eagle take. The Service proposes the following relative 
abundance thresholds for golden eagles and for bald eagles, below which 
a project is eligible for a general permit (table 1). For a project to 
be eligible, seasonal eagle abundance at all existing or proposed 
turbine locations must be lower than all five thresholds listed. These 
relative abundance thresholds were derived using available data from 
eBird (eBird is an online database of bird distribution and abundance. 
Cornell Lab of Ornithology, https://www.ebird.org). These data are 
publicly available and geographically distributed and allow the Service 
to establish these eligibility criteria without the need for collecting 
site-specific information.

 Table 1--Relative Abundance Thresholds for Wind Energy General Permits
------------------------------------------------------------------------
                                                            Bald eagle
              Period                     Date range          abundance
------------------------------------------------------------------------
1.................................  Feb 22-Apr 13.......           1.272
2.................................  Apr 12-Sept 6.......           0.812
3.................................  Sept 7-Dec 13.......           0.973
4.................................  Dec 14-Feb 21.......           1.151
5.................................  Average of period 1            1.018
                                     and 3.
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                           Golden eagle
              Period                     Date range          abundance
------------------------------------------------------------------------
1.................................  Feb 15-May 16.......           0.206
2.................................  May 17-Sep 27.......           0.118
3.................................  Sep 28-Dec 13.......           0.168
4.................................  Dec 14-Feb 14.......           0.229
5.................................  Average of period 1            0.145
                                     and 3.
------------------------------------------------------------------------

    The date ranges reflect the seasons where the species' population 
is generally moving or not moving. Periods 1 and 3 are the periods of 
movement between the breeding and non-breeding seasons (i.e., spring 
and fall migration). Periods 2 and 4 are the periods when the species' 
population is generally static during breeding or wintering. Period 5 
represents the spring and fall movement periods, pooled together. The 
pooled value is included to account for areas that may not experience 
the highest use by eagles in spring or fall but cumulatively represent 
relatively high use during the combined migration period. Migration 
paths and eagle destinations during migration may differ between the 
spring and fall. Including each migration period independently and the 
average of both by including ``migration'' is a conservative approach 
to ensure areas that experience high levels of eagle use across spring 
and fall migration cumulatively would be considered high eagle 
abundance areas.
    We chose relative abundance thresholds during these periods as the 
basis for general-permit eligibility because the known life histories 
of both species suggest that the local presence of either species may 
change dramatically throughout the year as they breed, forage, migrate, 
or disperse. We define relative abundance as the average number of 
eagles of each species expected to be seen by a qualified person who 
observes for eagles for one hour at the optimal time of the day for 
detecting the species, and who travels no more than one kilometer 
during the observation session. Relative abundance values determined 
for a project must be based on publicly available eBird data for bald 
eagle and golden eagle abundance. To be eligible, the relative 
abundance of eagles at a project location must fall below all the 
relative abundance thresholds listed in the eligibility criteria for 
each species and season. The Service intends to review eagle thresholds 
as new eBird data become available and update thresholds when 
appropriate through rulemaking.
    To assist project proponents in determining whether they qualify 
for general permits based on the relative abundance thresholds listed 
above, the Service will offer publicly available, online-mapping 
resources depicting areas that qualify (see https://www.fws.gov/regulations/eagle). Applicants that use the Service's published maps 
would not have to make the calculations described above. We estimate 
that nearly 80 percent of all existing wind-energy turbines in the 
coterminous United States are located in areas under the proposed 
relative abundance thresholds for both species and thus eligible for a 
general permit under this proposal. The Service proposes to not include 
Alaska in wind energy general permits at this time because existing 
data limit the ability to identify relative abundance thresholds for 
Alaska with confidence and there is currently limited wind development 
in Alaska and thus low demand for wind energy permits. Thus, at this 
time we propose that all wind energy projects in Alaska would have to 
apply for specific permits.
    Because abundance is a coarse-scale measure for the potential 
impacts of a project on eagles, we propose pairing eagle abundance 
thresholds with a requirement that projects be sited greater than 660 
feet from bald eagle nests and greater than 2 miles from golden eagle 
nests to be eligible for a general permit. This additional requirement 
provides a protective measure for eagles at a finer, project-level 
scale. Previous Service analysis found that breeding golden eagles 
regularly range 2 miles from their nest sites. Consequently, projects 
sited within 2 miles of a golden eagle nest have an elevated risk of 
taking breeding golden eagles or their young fledglings. A 2-mile 
buffer is required regardless of nest status because golden eagles 
commonly reuse nesting sites across years and can even reoccupy nests 
after decades of vacancy. Additionally, the presence of a nest site has 
been shown

[[Page 59603]]

to indicate good habitat for golden eagles and correlate with increased 
abundance, even if the nest is not in-use. If a new nest is constructed 
within 2 miles of project infrastructure after issuance of a general 
permit, the permit holder will no longer meet eligibility criteria for 
a general permit. The project may continue to operate under the general 
permit through the duration of the permit term. However, the project 
would no longer be eligible for obtaining future general permits.
    We propose a 660-feet buffer from bald eagle nests to avoid 
disturbance of nests consistent with what is asked of other project 
construction and operation activities. We anticipate that our proposed 
relative-abundance threshold would exclude the highest density bald 
eagle nesting areas from eligibility for a general permit. We did not 
propose a larger buffer distance that would have reduced the likelihood 
of collision because of the overall increasing populations of bald 
eagles and the increasing number of nonbreeding adult eagles that are 
ready to assume vacant territories. Bald eagle populations can sustain 
occasional incidental take from wind-energy projects where we propose 
to authorize general permits. The Service will further ensure 
protection of bald eagles in lower density areas through tracking EMU 
and LAP take. To ensure the preservation of eagles, including the 
persistence of LAPs, for general permits that require compensatory 
mitigation, the Service proposes to require a portion of the eagle 
compensatory mitigation credit be pooled and directed to LAPs of 
concern.
    The Service recognizes the need to address existing projects where 
not all turbines are located within an area of relative abundance below 
designated thresholds that qualify for a general permit. We propose 
defining existing projects to include all infrastructure that was 
operational prior to the effective date of the final rule as well as 
infrastructure that was sufficiently far along in the planning process 
on that date that complying with new requirements would be 
impracticable, including if land agreements were already in place, site 
preparation was already underway, or infrastructure was partially 
constructed. We propose that when a portion of the turbines at an 
existing project does not qualify for a general permit, the project 
operator must apply for a specific permit, but may request 
consideration for a general permit in the specific permit application. 
The Service will review the project and will issue a letter of 
authorization if we determine it is appropriate to designate that 
project as eligible for a general permit. We may refund the specific-
permit application fee, but we will not refund the administration fee. 
The Service anticipates issuing a letter of authorization for most 
existing projects where only a small percentage of existing turbines do 
not qualify under the relative-abundance thresholds or when an existing 
project has conducted and provides monitoring data demonstrating 
fatality rates consistent with those expected for general permits. The 
letter of authorization may require additional compensatory mitigation 
requirements if appropriate. During the rulemaking process, we will 
consider revisions to the proposed eligibility criteria, as well as 
other possible eligibility criteria, such as those analyzed in 
Alternative 2 of the draft environmental assessment (DEA). In 
Alternative 2, the wind energy general permit eligibility criteria 
would require all turbines be greater than one mile from a bald eagle 
nest and greater than two miles from a golden eagle nest. There would 
be no eligibility criteria based on eagle relative abundance. Our final 
rule may include eligibility criteria different from those proposed 
here, providing that those criteria are consistent with the Eagle Act 
and the current preservation standard.
    For both general and specific permits, the Service proposes to 
continue requiring implementation of all practicable avoidance and 
minimization measures to reduce the likelihood of take. These 
conditions would likely include reducing eagle attractants at a site 
(e.g., minimizing prey populations or perch locations), minimizing 
human-caused food sources at a site (e.g., roadkill, livestock), and 
implementing adaptive-management plans that modify facility operations 
at a site if certain circumstances occur, such as when a certain number 
of eagle mortalities are detected. In developing the permit conditions 
and subsequent recommendations and guidance for complying with permit 
conditions, we will rely on our regional knowledge and expertise gained 
from processing and issuing previous programmatic (see the 2009 Eagle 
Rule) and long-term (see the 2016 Eagle Rule) eagle incidental take 
permits. General permit conditions will be nonnegotiable and fixed for 
the term of the permit. However, any Service revisions to the general-
permit conditions for incidental take of eagles would supersede prior 
conditions if a project entity applied for a subsequent general permit. 
The Service proposes to continue standardizing certain elements of 
specific permit conditions for eagle take to improve transparency and 
efficiency while also adapting conditions to unique permit situations 
on a case-by-case basis.
    The Service proposes retaining a maximum 30-year tenure for 
specific permits for wind projects, consistent with current 
regulations. This tenure is appropriate given the amount of time that 
wind-energy projects are expected to operate on the landscape. Specific 
permits may be requested and authorized for any duration (in one-year 
increments) up to 30 years. The Service proposes a maximum tenure of 5 
years for general permits. Upon expiration, project applicants may 
reapply and obtain a new 5-year general permit. We propose that general 
permits for eagle take cannot be amended during each 5-year term.
    The proposed general permit will require permittees to monitor 
eagle take. We propose that project proponents must train relevant 
employees to recognize and report eagle take as part of their regular 
duties. This monitoring requirement includes visually scanning for 
injured eagles and eagle remains during inspections, maintenance, 
repair, and vegetation management at and around project infrastructure. 
Scans must occur a minimum of once every three months corresponding to 
the highest eagle-use, seasonal periods to the maximum extent 
practicable. Any dead or injured eagle discovered within the project, 
regardless of cause, must be promptly reported to the Service (i.e., 
within 2 weeks). All eagles must be reported, regardless of suspected 
cause of death, but may include explanatory information if alternate 
cause of death is suspected. The Service will determine whether a given 
eagle injury or mortality is attributable to a participating project. 
Disposal of eagles must be in accordance with Service instructions, 
which may include shipping eagles to the National Eagle Repository or 
other designated facility. If a project is located within Indian 
Country, the Service may direct eagle remains to be returned to the 
Tribe, in accordance with a Tribal Eagle Remains permit. These 
requirements are detailed in the general permit conditions under 
supplementary materials at https://www.regulations.gov in Docket No. 
FWS-HQ-MB-2020-0023.
    The Service is aware that this proposed four-eagle threshold under 
general permits may not represent the same levels of realized fatality 
rates across all generally permitted projects; for instance, some 
permittees with projects in denser vegetation or rougher terrain may 
have a more difficult time spotting eagle fatalities, resulting in

[[Page 59604]]

fewer reported takes and a greater likelihood of remaining in the 
general-permit program. To overcome this, the Service could either (a) 
require more rigorous fatality monitoring for all general permits, or 
(b) attempt to classify projects based on assumptions about the 
probability of detection at each site and require different thresholds 
under each classification. The Service did not propose (a) because 
requiring such a rigorous level of site-specific monitoring would 
undermine the purpose of a general-permit program, or (b) because it 
would add significant complexity to the general-permitting process, 
which would also undermine the purpose of offering a general-permit 
option. Both options would also be much more costly. We encourage 
public comment on these proposed general-permit, detected-take 
thresholds.
    If three bald-eagle injuries or mortalities, or three golden-eagle 
injuries or mortalities attributable to the project are discovered at a 
project during the 5-year general permit tenure, within 2 weeks of this 
discovery the permittee must provide the Service with an adaptive 
management plan. The permittee would specify which avoidance and 
minimization measures it will implement in the short term (after 
finding the remains of a third eagle of a species) and which it will 
implement if remains of a fourth eagle of that same species is found. 
If an injury or mortality of a fourth eagle of that species 
attributable to the project is discovered, the permittee must again 
notify the Service of that discovery within 2 weeks and confirm that it 
will implement the avoidance and minimization measures outlined in the 
adaptive management plan, including any modifications to the plan. The 
project may continue to operate under the general permit if the 
permittee implements its adaptive management plan through the duration 
of the permit term. However, the project would no longer be eligible 
for obtaining future general permits. The permittee may request 
reconsideration as authorized under 50 CFR 13.29, including a 
description of extenuating circumstances. Otherwise, the project 
proponent would have to apply for a specific permit for eagle take.
    The purpose of including this discovered-eagles provision in 
general permits is so the Service can identify what should be the rare 
wind project that qualifies for a general permit but, based on realized 
take, ought to have gone through the more rigorous specific permit 
process. By requiring notification from projects operating under 
general permits if three and four eagles are found, we seek to ensure 
that the overall take authorized by the general-permit program remains 
within the range we predict and is appropriately offset to the degree 
necessary for the species' preservation. It is important to note that 
the finding of eagle remains at any project represents only the minimum 
number of eagles that may have been killed by a project. Depending on 
the probability of detection, which is determined by such factors as 
site topography and vegetation, the number of eagles actually taken may 
be close to the number of eagles found, or the number actually taken 
could be substantially higher than the number found. We anticipate that 
the operations and management staff conducting the monitoring as 
outlined in the proposed general permit conditions will detect 
approximately 15-20 percent of all eagles injured or killed at an 
average project. If four eagles are discovered at this detection rate, 
we estimate that as many as 16-23 eagles may have gone undiscovered. 
This estimate, based on a proposed detection rate of 15-20 percent and 
four eagles found, is comparable to the number of eagles we estimate 
(conservatively; see appendix A) will be taken at projects that are 
only eligible for specific permits over a 5-year period (because of the 
conservative nature of our take estimates, many projects will take 
substantially fewer than these projected numbers of eagles). For these 
reasons, discovered take of four golden eagles or four bald eagles 
appropriately distinguishes between projects that we intend to cover 
under general permits and higher risk projects that are better managed 
under specific permits.
    Projects that receive general permits and reach the four-eagle 
threshold for either species will have shown evidence that they are 
taking eagles at a rate consistent with projects eligible for specific 
permits. We estimate that the average 100-turbine project that 
qualifies for a specific permit will take approximately 6.9 golden 
eagles per year (at the 80th quantile), or approximately 35 golden 
eagles over a 5-year period, and approximately 1.6 bald eagles per year 
(at the 60th quantile), or approximately 8 bald eagles over a 5-year 
period (see the DEA for additional information and methodology), Note 
that we expect the average wind project receiving a specific permit 
will take fewer bald eagles than golden eagles. Based on this, we 
considered making the detected-take threshold for general permit 
removal lower for bald eagles than it is for golden eagles. However, 
given the increasing and relatively robust nationwide populations of 
bald eagles, we concluded that it was not appropriate to make this 
threshold lower for bald eagles than for golden eagles. Thus, we set 
the threshold for general permit removal at the same level for bald 
eagles as we did for golden eagles.
    We propose an administration fee for wind-energy general permits to 
cover the unique costs of implementing the general-permit program for 
wind-energy projects. The project-level monitoring required of general 
permittees is not adequate on its own to administer the program. The 
administration fee would be included in the application fee and cover 
the costs to the Service to perform more rigorous systematic fatality 
monitoring on a program-wide basis to ensure the preservation of eagles 
instead of individual applicants being required to fund and conduct 
more rigorous fatality monitoring on every project. By utilizing a 
systematic approach to fatality monitoring, not every site has to be 
surveyed every year, which reduces costs to the regulated community. 
The Service proposes a fee of $525 per turbine per year or $2,625 per 
turbine for a 5-year permit to cover the costs of this systematic 
monitoring.
    To complete this systematic fatality monitoring program, the 
Service must have reasonable access to wind-energy projects. As part of 
their participation in the general permit program, project proponents 
will consent to allow systematic monitoring at their projects by 
Service staff or Service contractors. The Service would negotiate the 
logistics of access to project sites with the permittee. Service 
monitoring data will be used to inform EMU and national estimates of 
take rates and is not intended to assess project-by-project compliance 
under the general-permit program. To ensure the general accuracy of 
estimates and tracking of take over time, we may use project-scale 
monitoring with a standardized approach, such as randomized and 
stratified monitoring by relevant factors such as geography, project 
size, and eagle abundance. The Service will use the information 
collected through programmatic monitoring to (1) ensure the general-
permit program is compatible with the preservation of eagles by 
assessing overall eagle mortality at the EMU and LAP scale and (2) 
inform all relevant aspects of the administration of the program to 
guide future regulatory and implementation policy revisions.
    For general permits for wind-energy activities, the Service 
proposes

[[Page 59605]]

authorizing the incidental take of bald eagles and golden eagles 
without authorizing a specific number of eagles on the face of the 
permit. Wind energy activities pose risks to both species of eagles at 
large geographic scales and over long periods of time. To enable the 
development of an efficient general permit, we propose to authorize the 
take of both species for each general permit.
    The Service will require offsetting compensatory mitigation at a 
fixed rate for each EMU. This rate will be in the form of eagle credits 
per cubic kilometer of hazardous volume (rounded to thousandths). The 
Service calculated the appropriate rates based on estimated take across 
all general permits, the Service's required 1.2:1 ratio for golden 
eagles, and a component designed to offset authorized take at the LAP 
scale should that be necessary. By scaling compensatory mitigation cost 
to hazardous volume, we would require compensatory mitigation that is 
proportionate to a project's potential impacts on eagles, which could 
also encourage broader participation in the program, particularly 
smaller projects. The Service considered a flat-fee approach where all 
projects are responsible for the same fee regardless of size; however, 
we were concerned about the cost disincentive to smaller projects. 
Wind-energy projects operating under a general permit must obtain eagle 
credits to the nearest tenth of an eagle for every cubic-kilometer of 
hazardous volume of the project from a Service-approved conservation 
bank or in-lieu fee program at the following rates:
    [ballot] Atlantic/Mississippi EMUs: 6.56 eagles/km\3\;
    [ballot] Central EMU: 7.88 eagles/km\3\; and
    [ballot] Pacific EMU: 11.48 eagles/km\3\.
    These different rates reflect the different abundances and modeled 
fatality rates of golden eagles and bald eagles in each EMU. Records 
must be kept to document compliance with this requirement and provided 
to the Service upon request or upon submission of each annual report. 
In accordance with the 2016 PEIS, the Service-approved in-lieu fee 
programs must provide credits for authorized eagle take within the same 
EMU where the permitted take occurs, unless reliable data support that 
compensatory mitigation performed outside the EMU will similarly 
protect the affected population. Service-approved in-lieu fee programs 
may be directed by the Service to provide credits in a particular LAP 
if LAP concerns arise during periodic reviews of the general permit 
program.
    For specific permits for eagle take by the wind industry, the 
Service will include a fatality estimate for each project based on the 
best available information and published procedures. From that fatality 
estimate, the Service will specify the number of eagle credits that 
must be obtained from a Service-approved conservation bank or in-lieu 
fee program or implemented by the permittee under a Service-approved 
mitigation plan.

Eagle Incidental Take Permits for Power Lines

    The Service proposes a general-permit option for power lines at 50 
CFR 22.260. Multiple power-line entities have expressed interest in 
obtaining an eagle incidental take permit, and we have sufficient 
understanding of how eagles interact with power lines to develop a 
general permit appropriate for this industry. We propose a general 
permit for eagle take resulting from power-line infrastructure. We 
would retain provisions for a specific permit for power-line entities 
that qualify but do not wish to obtain a general permit or have been 
notified by the Service to obtain a specific permit.
    We propose that the general permit for power-line entities will 
require the following six conditions:
    First, all new construction and reconstruction of pole 
infrastructure must be electrocution-safe for bald eagles and golden 
eagles, except as limited by human health and safety. ``Electrocution-
safe'' means a pole configuration designed to minimize the risk of 
eagle electrocution (1) by providing sufficient separation between 
phases and between phases and grounds to accommodate the wrist-to-wrist 
or head-to-foot distance of eagles, or (2) by covering exposed parts 
with insulators to physically separate electricity from birds. If 
insulators are used, they must be in good condition and regularly 
maintained. Buried lines are considered ``electrocution-safe.'' We 
recommend buried lines when feasible because they completely eliminate 
the risks of electrocution, collision, and shooting.
    Second, all new construction and reconstruction of transmission 
lines must consider eagle nesting, foraging, and roosting areas in 
siting and design, as limited by human health and safety. We recommend 
utility infrastructure siting at least 2 miles from golden eagle nests, 
660 feet from a bald eagle nest, 660 feet from a bald eagle roost, and 
1 mile from a bald eagle or golden eagle foraging area. Within each of 
these distance ranges, we expect elevated eagle use and increased risk 
of interaction with power and transmission line infrastructure.
    Third, a reactive retrofit strategy must be developed that governs 
retrofitting of high-risk poles when an eagle electrocution is 
discovered. A reactive retrofit strategy responds to incidents in which 
eagles are killed or injured by electrocution. The reactive retrofit 
strategy must include how electrocutions are detected and identified. 
Poles selected for retrofits must be based only on risk to eagles, 
regardless of other factors, such as convenience to the permittee. The 
permittee must retrofit the pole that caused the electrocution, unless 
the pole already provides sufficient separation by design or is fully 
insulated by insulators in good condition. The permittee must retrofit 
a total of 11 poles or a half-mile segment of poles, whichever is less. 
The most typical pole selection would be the pole that caused the 
electrocution and five poles in each direction. However, if it is 
better for eagles for the project proponent to retrofit other poles in 
the circuit that are not electrocution-safe, those poles may be 
retrofit, prioritizing the least safe poles most adjacent to the 
electrocution. Poles outside of the circuit that caused the 
electrocution may be retrofit only if all poles in the circuit are 
already electrocution-safe. The Service estimates that retrofitting 11 
power poles of high risk to eagles offsets the take of one eagle over 
30 years at a ratio of 1.2:1. This estimate assumes that the permittee 
implements mitigation immediately and retrofits remain effective for 30 
years.
    Fourth, a proactive retrofit strategy must be developed and 
implemented to convert all existing infrastructure to be electrocution-
safe, prioritizing poles that the permittee identifies as the highest 
risk to eagles. The permittee must establish annual targets for pole 
retrofits that result in the con version of one-tenth of non-
electrocution-safe infrastructure to electrocution-safe by the 
expiration of the 5-year general permit term.
    Fifth, a collision-response strategy must be implemented for all 
eagle collisions with power lines. If an eagle collision is detected, a 
strategy must outline the steps to identify and assess the collision, 
consider options for response, and implement a response. The assessment 
should include the species, habitat, daily, and seasonal migration 
patterns, concentration areas, and other local factors that might have 
contributed to the collision. The response options should consider 
eagle collisions in the engineering design (e.g., burying the line, 
rerouting the line, or modifying the line to reduce the number of 
wires), habitat modification,

[[Page 59606]]

and marking the line. Sixth, an eagle-shooting-response strategy must 
be developed and implemented when an eagle shooting is discovered near 
power-line infrastructure. To be clear, it is not the fault of the 
power-line entity when eagles are illegally shot on power-line 
infrastructure. However, it benefits both eagles and the power-line 
entity to reduce shooting at eagles and other migratory birds on power-
line infrastructure. Shooting eagles on power-line infrastructure can 
also reduce reliability of power delivery as stray ammunition can 
damage infrastructure. The strategy should outline the steps to 
determine whether discovered eagles have been shot or electrocuted and 
may include necropsying eagles at a qualified laboratory to determine 
the cause of death if necessary. If shooting is identified, the 
strategy would outline options for response. This response should 
include notifying the applicable Service Office of Law Enforcement. 
However, the Service also encourages power-line entities to develop 
other response options, such as offering incentives for information 
regarding eagle shooting incidents on power-line infrastructure, 
practicable access restrictions, or burying lines. This proposal would 
be a new request of the power-line industry, and the Service is seeking 
creativity and ingenuity as power-line entities and the Service work 
together to address this leading cause of eagle mortality.
    If possible, applicants would create one plan with the strategies 
described above: incorporating eagles into new equipment design and 
siting, reactive and proactive retrofit strategies, a collision-
response strategy, and an eagle-shooting-response strategy. For 
example, many power-line entities currently operate under avian 
protection plans (APPs), in which most of these elements already exist. 
For entities that currently have APPs, we expect applying for this 
general permit would require relatively minor additions and 
modifications. The Service would not require the applicant to submit 
this information when applying for a general permit, but it must be 
provided upon request.
    We propose a tenure of 5 years for general permits. Applicants may 
apply for a new general permit at the end of the 5-year term. We 
propose a monitoring requirement that would require power-line entities 
to train relevant employees to recognize and report eagle take as part 
of their regular duties. This activity would include visually scanning 
for injured eagles and eagle remains during inspections, maintenance, 
repair, and vegetation management at permitted infrastructure. You must 
immediately notify the Service of any eagle discovered near power-line 
infrastructure, regardless of cause. We propose to require submission 
of an annual report of eagles discovered to the Service.
    We propose a general-permit administration fee of $5,000 for each 
State for which the power-line entity is seeking authorization. We 
propose to use the number of States as the relevant factor to scale the 
administration fee to the size of the power-line entity's operations. 
The administration fee will be used to monitor the general-permit 
program. We do not propose requiring additional off-setting 
compensatory mitigation beyond reactive and proactive retrofits for 
general permits for power lines. Under the current PEIS, off-setting 
compensatory mitigation is required only for golden eagle mortality 
caused by infrastructure installed on or after the 2009 baseline 
conditions. Mortality on pre-2009 infrastructure is considered part of 
the baseline and is not applied to EMU take limits. With the wide 
availability of the guidelines developed by the Avian Power Line 
Interaction Committee (Suggested Practices for Avian Protection on 
Power Lines (2006) and Reducing Avian Collisions with Power Lines 
(2012)), the Service estimates that power-line infrastructure installed 
after 2009 takes relatively few eagles.
    Conversely, the Service estimates significant benefits will accrue 
to golden eagles from implementing the measures required as part of the 
proposed general-permit conditions. The Service estimates that 
approximately 500 golden eagles are killed annually as a result of 
electrocutions. Approximately 600 more die from collisions, a portion 
of which are probably collisions with powerlines (USFWS 2016; Millsap 
et al. 2022 (in press)). We expect that the proposed combination of 
requiring new power lines to be electrocution-safe, reconstruction of 
old power lines to make poles electrocution-safe, the creation and 
implementation of a reactive retrofit strategy, and the creation and 
implementation of a proactive retrofit strategy will be an effective 
approach to reducing the take of eagles on power-line infrastructure 
across the landscape over time. We expect that these approaches to 
reduce take at older infrastructure will more than offset take 
occurring on non-electrocution-safe poles constructed after 2009--the 
baseline year after which we require compensatory mitigation for golden 
eagle take for new construction. Therefore, the Service anticipates a 
net benefit to eagles from utilities participating in the general 
permit program as proposed and is not proposing to require additional 
compensatory mitigation for this type of permit.
    Furthermore, illegal shooting of eagles kills approximately 670 
golden eagles per year (Millsap et al. 2022). We expect that power-
line-industry assistance in reducing illegal shooting could 
significantly advance golden-eagle preservation, although we cannot 
currently quantify the expected magnitude of that benefit.

Eagle Disturbance Take Permits

    More than two-thirds of the eagle take permits the Service 
currently issues are for incidental disturbance due to activities 
conducted near bald eagle nests. The current regulations at 50 CFR 
22.80 govern both disturbance take and incidental killing of eagles. 
Accommodating the substantive difference in effects to eagles from 
these two different types of take has created an overly complex 
regulation. Therefore, we propose to authorize the incidental 
disturbance take of eagles in a new stand-alone regulatory section, 50 
CFR 22.280. This proposed regulation extracts portions of the existing 
regulation (50 CFR 22.80) that relate to disturbance take. This 
proposed change will reduce the complexity of the current regulation, 
making permitting of incidental disturbance of eagles clearer and 
easier to understand. We also propose to clarify what does and does not 
constitute disturbance.
    The Service proposes to retain the existing definition of 
``disturb'' (50 CFR 22.6). We propose authorizing disturbance of bald 
eagles under general permits for most activities currently described in 
the 2007 Activity-Specific Guidelines of the National Bald Eagle 
Management Guidelines (hereinafter the ``Guidelines''). In 2009, 
following the delisting of the bald eagle from the Endangered Species 
Act, the Service published the Guidelines to help landowners and 
project proponents avoid disturbing breeding bald eagles when 
conducting activities near nest sites. The Guidelines created activity 
categories A-H, which we generally propose to adopt as eligibility 
criteria for general permits for eagle disturbance take. These 
categories include construction activities, linear utilities, 
alteration of shorelines, vegetation and timber practices, motorized 
recreational activities, nonmotorized recreational activities, aircraft 
operations, and blasting and other loud noises. At this time, 
disturbance caused by agriculture, mining, and oil and gas operations 
will

[[Page 59607]]

not be eligible for general permits, as requests for these activities 
have been received infrequently and standard avoidance and minimization 
measures have not yet been developed. Operators of these and other 
activities may apply for specific permits.
    Between publication of the Guidelines in 2007 and nationwide eagle 
population surveys in 2018, we estimate that bald eagle populations 
have quadrupled in the Lower 48 United States (USFWS. 2021. Final 
Report: Bald Eagle Population Size: 2020 Update. December 2020. 
Division of Migratory Bird Management, Washington D.C. U.S.A.). This 
includes growth into environments that are developed or in the process 
of being developed, increasing the demand for permits for eagle 
disturbance. The demand for eagle-disturbance take permits has placed a 
significant administrative burden on the regulated public and the 
Service.
    However, a recent analysis of monitoring reports submitted under 
nest-disturbance permits reveals that most bald eagles with breeding 
territories permitted for disturbance do not, in fact, end up being 
disturbed by permitted activities when avoidance and minimization 
measures are followed. Rather, the success rates of populations subject 
to a high prevalence of disturbance permits do not appear to differ 
significantly from bald eagle breeding populations subject to few or no 
disturbance permits. Therefore, the Service proposes reducing the 
administrative burden to the public and the Service by creating a 
general permit for common activities. We estimate that the general-
permit-eligibility criteria proposed will address more than 85 percent 
of the demand for eagle disturbance permits. We propose standardized 
avoidance and minimization measures to reduce the disruptive impacts 
from these activities based on our experience since 2009 with 
permitting eagle disturbance. The Service proposes requiring specific 
permits for all other activities that may cause disturbance take of 
bald eagles and any activity that may cause disturbance take of golden 
eagles.
    We propose to retain the tenure of 5 years for specific permits for 
incidental disturbance. However, we propose limiting the tenure of 
general permits for incidental disturbance to one year, expiring at the 
beginning of the regional breeding season. Permit conditions will 
include the applicable start dates. General permits could be renewed 
for subsequent years for activities conducted longer than 1 year. The 
Service proposes to continue to require monitoring as appropriate for 
both specific and general disturbance permits. Monitoring would be 
standardized for general permits and required as necessary to evaluate 
whether disturbance occurs by determining the effects of general 
permitted activities on eagle nest outcomes, such as a single report of 
whether the nest does or does not fledge young.
    For both specific and general disturbance permits, we propose to 
require that applicants provide the coordinates of the nest(s) for 
which they are requesting disturbance authorization. Precise location 
information is necessary for both the Service staff who conduct eagle 
population management and law enforcement. For both specific and 
general permits, we propose permit conditions that include 
implementation of measures to avoid and minimize to the extent 
practicable the risk that authorized activities disturb breeding bald 
eagles. To determine practicability, the Service will consider eagle 
population status, the known efficacy of the measure, and the potential 
burden to the permittee. For specific permits, applicants will have the 
opportunity to provide input into these permit conditions; however, 
conditions for general permits will be standardized for all disturbance 
take of that type of activity and designed to achieve compliance with 
the standard conditions in these proposed regulations. General permit 
conditions include effective techniques that have been consistently and 
successfully used in specific permits for the past 10 years or more.
    The Service expects the streamlined general-permit-application 
process for authorizing disturbance will significantly reduce 
compliance burdens for project proponents. The application process for 
disturbance permits has often challenged the capacity and means of some 
project proponents, particularly homeowners who cannot afford the 
services of environmental consultants. A general permit will also 
increase transparency and certainty for project proponents and the 
public. With standardized authorizations and requirements for 
disturbance, proponents will know precisely what restrictions may apply 
to their activity allowing greater certainty during project planning. 
The public, too, will have a greater understanding of the 
responsibilities and obligations of permitted projects in their area. 
Through this general permit process, the Service will continue to 
sustainably manage bald eagles and potentially benefit populations 
through the agency's ability to redirect resources to other, more 
significant, conservation concerns.
    As part of this rulemaking, the Service proposes clarifying when 
disturbance is likely to occur and when obtaining a permit is 
advisable. The topic of when a permit is necessary for disturbance of 
breeding eagles has generated confusion among the regulated community 
and the public in general. Based on its experience in processing 
disturbance permits since 2009, the Service has determined that certain 
activities are unlikely to result in disturbance.
    We propose to clarify that using non-lethal methods to disperse 
eagles away from a site, known as hazing, does not constitute eagle 
disturbance in most circumstances and does not require a permit. Eagle 
hazing is most often necessary at airfields, landfills, and livestock 
or poultry farms. The intent of hazing is to deter eagle depredation 
(i.e., substantial injury to wildlife or agriculture) or reduce threats 
to human or eagle health and safety by temporarily displacing 
individual eagles from a location. In over a decade of annual reports 
from eagle depredation permits authorizing hazing of eagles, the 
Service has found no evidence that hazing results in disturbance of 
eagles, as defined. In other words, hazing is not known to cause injury 
to eagles, nest abandonment, or a decrease in productivity at eagle 
nests when conducted away from in-use eagle nests. In the several 
national and regional GPS telemetry studies of golden eagles, we are 
aware of no golden eagle injury or mortality arising from hazing. 
Therefore, we propose that eagle hazing does not constitute disturbance 
unless it is adjacent to an in-use nest sufficient to disrupt eagle 
breeding activity. The Service will continue to recommend a buffer 
distance for hazing activities conducted near in-use nests that 
reflects the latest information available. We currently recommend a 
buffer distance of 660 feet.
    We also propose to clarify that activities conducted adjacent to a 
communal roost or foraging area do not constitute eagle disturbance and 
do not require a permit. ``Communal roost site'' and ``foraging area'' 
are defined by regulation (50 CFR 22.6). In our 2007 Guidelines, we 
stated that human activity near communal roost sites or foraging areas 
could prevent eagles from feeding or taking shelter, thus resulting in 
disturbance take. However, since publication of the Guidelines, we have 
received little to no documentation that confirms take from activities 
near roosts, particularly bald eagle roosts.

[[Page 59608]]

Temporary or permanent impacts to an individual communal roost site may 
displace eagles but are unlikely to cause death of or injury to eagles 
or affect the breeding, feeding, or sheltering of eagles to a degree 
that qualifies as disturbance. Therefore, we propose to clarify that 
activities adjacent to communal roosts do not constitute disturbance. 
Removal of a foraging area has greater potential to cause disturbance; 
therefore, we propose to clarify that activities that fully prevent use 
of a foraging area may cause disturbance and the project proponent 
should apply for a specific permit, particularly if the activity will 
remove all foraging opportunities within one mile of an in-use nest.
    We may deny permit applications for disturbance take of eagles 
where we determine that disturbance is unlikely to occur. The Service 
also proposes to clarify that activities in compliance with the 
Service's current guidance are unlikely to result in disturbance and do 
not require a permit. As bald eagle populations continue to grow, the 
Service will focus permitting for nest disturbance on activities that 
are moderately to highly likely to result in disruption of breeding 
activity to the degree that it is likely to result in disturbance.

Eagle Nest Take Permits

    We propose eagle nest take regulations at 50 CFR 22.300 to 
authorize the take of eagle nests. This proposed section would update 
the existing regulations pertaining to removal of eagle nests (50 CFR 
22.85) to include a general permit option. We also propose the 
following modifications to these regulations: (1) clarify that 
obstruction of a nest constitutes nest take; (2) establish a 1-year 
maximum tenure for general permits for nest take; and (3) add a 
justification for authorizing the take of eagle nests to protect 
threatened or endangered species.
    We propose the eagle nest take regulation to include relocation or 
obstruction of nests. Relocation of all or part of an eagle nest to a 
new location can be an appropriate alternative to destroying the nest, 
especially for bald eagles. Placement of an obstruction in an eagle 
nest, such as a traffic cone, can be an effective technique to prevent 
use of a nest. Obstructions can be used permanently if a nest is unsafe 
or otherwise difficult to remove. Obstructions can also be used 
temporarily to prevent the use of a nest adjacent to a temporary 
activity, allowing eagles to return in future years after completion of 
the activity.
    Currently, the Service authorizes eagle nest take for four 
purposes: emergency, health and safety, removal from human-engineered 
structures, and other purposes (50 CFR 22.85(a)(1)(i) through (iv)). 
The Service proposes authorizing general permits for nest take only for 
bald eagles and only for the first three of the current justifications 
(50 CFR 22.85(a)(1)(i) through (iii): emergency, health and safety, and 
human-engineered structures). As described above, bald eagle 
populations have grown significantly since publication of the 2009 
Eagle Rule, and populations continue to grow. Additionally, after more 
than 10 years of issuing permits to remove bald eagle nests, the 
Service has developed standard permit conditions that can be applied to 
authorizing the take of bald eagle nests using general permits. We will 
continue to require specific permits for any take of golden eagle nests 
because of the population status of golden eagles. We will also 
continue to require a specific permit for take of eagle nests under the 
``other purposes'' justification (current regulation at Sec.  
22.85(a)(1)(iv)) because the Service must ensure that those permits 
provide a net benefit to eagles. This determination must be made on a 
case-by-case basis and depends on the circumstances of the other 
purpose requiring nest take. However, we propose to make one exception 
to this specific-permit requirement for other purposes by authorizing a 
general permit only in Alaska for bald eagle nest take for other 
purposes (currently 50 CFR 22.85(a)(1)(iv)). In Alaska, the Service has 
already developed and implemented standard conditions to meet these 
requirements considering the robust Alaska bald eagle population.
    The Service proposes adding a fifth justification for authorizing 
the take of eagle nests when necessary for the protection of species on 
the List of Endangered and Threatened Wildlife (50 CFR 17.11) under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544). This 
activity would require a specific permit. With expanding bald eagle 
populations, the Service foresees situations arising where the take of 
an eagle nest may be necessary for the recovery of a threatened or 
endangered species. Examples include transmitters from threatened 
marbled murrelets found in bald eagle nests and bald eagles attacking 
endangered whooping cranes. As many seabird and waterbird populations 
continue to decline and bald eagle populations continue to increase, 
the Service anticipates an increase in situations where bald eagle 
management may be a necessary part of implementing recovery plans. 
Moreover, nest take is an important tool that can reduce the need for 
other types of take, such as trap-and-relocate or lethal removal.
    We propose to retain the tenure of 5 years for specific permits 
along with the ability to authorize the take of multiple nests. 
However, we propose limiting the tenure of general permits to a maximum 
of 1 year, expiring at the beginning of the regional breeding season. 
Permit conditions will include the applicable regional breeding season 
start date. Additionally, the general permit would authorize the 
removal of one specific nest. The general permit would also authorize 
removal of subsequent nesting attempts on the same nesting substrate 
and within one-half-mile of that location for the duration of the 
permit if the subsequent nests recreate the emergency, safety, or 
functional hazard that the permittee certified applied to the original 
nest. However, additional general permits would be required to remove 
subsequent nesting attempts more than one-half-mile away. We propose 
these reduced tenure and permit-per-nest requirements to better ensure 
general permits for nest take are compatible with the preservation of 
eagles.
    For both specific and general nest-take permits, applicants must 
provide the coordinates of the nest(s) they are requesting to take. 
Precise location information is necessary for both the Service staff 
responsible for eagle population management and for law enforcement. To 
ensure consistency with the Eagle Act, applicants for both specific and 
general nest-take permits must certify which of the eligibility 
criteria they meet and certify that there is no practicable alternative 
to nest removal that would protect the interest to be served. Finally, 
applicants for both specific and general permits must agree to 
implement permit conditions. Specific-permit applicants may provide 
input into these permit conditions; however, general-permit conditions 
will be standardized for all general permits of that type. General-
permit conditions represent effective techniques that have consistently 
and successfully been used in specific nest-take permits for the past 
10 years or more.
    Currently, the Service typically requires permittees to monitor the 
area near where the nest was removed for one or more seasons to 
determine whether the affected eagles relocate and successfully fledge 
young. We propose retaining the possibility of requiring monitoring 
under specific permits on a

[[Page 59609]]

case-by-case basis. However, given current knowledge and the population 
status of bald eagles, we do not propose to require monitoring for 
general permits. After more than a decade of annual monitoring reports, 
a one-year permit tenure is expected to better capture the necessary 
information to meet the preservation standard than requiring monitoring 
and is less burdensome to the applicant. However, by reducing the level 
of monitoring and reporting, the Service could lose the potential to 
make case-specific determinations on the likelihood of lost breeding 
productivity. Therefore, we will conservatively assume that each nest 
take authorized by the general permit will result in a loss of breeding 
productivity for one breeding season. We may change this practice in 
the future if data warrants a change in our assumption.
    The Service does not propose compensatory mitigation for nest-take 
general permits. General permits for nest take are limited to bald 
eagle nests in the following circumstances: emergency or human or eagle 
safety situations, or when constructed on human-engineered structures. 
These situations are typically hazardous to eagles, so that eagles also 
benefit from resolving the situation. Compensatory mitigation is not 
considered warranted for this reason and because of the population 
status of bald eagles. The Service proposes to continue requiring 
compensatory mitigation for specific permits that authorize nest take 
for golden eagles or when needed to meet the net-benefit requirement. 
Compensatory mitigation for specific permits will be scaled to the 
permitted take and the population status of the species for which nest 
take is requested. A specific permit applicant may meet this 
requirement by obtaining the Service-approved amount of eagle credits 
from a Service-approved conservation bank or in-lieu fee program. The 
applicant may also propose other types of compensatory mitigation for 
Service approval.

Changes to Definitions

    As part of this rulemaking, we propose narrowing the definition of 
``eagle nest'' to exclude nest structures on failed nesting substrate. 
Currently, we define ``eagle nest'' to mean any assemblage of materials 
built, maintained, or used by bald eagles or golden eagles for the 
purpose of reproduction. We propose adding the qualification that it 
must be possible for eagles to reuse the nesting substrate for breeding 
purposes. Nesting substrate that, due to natural circumstances, is no 
longer and will never again be available to eagles for functional use 
will no longer meet the regulatory definition of an eagle nest. We 
propose revising this definition to address uncommon but occasional 
instances in which eagle nests or nesting substrate are impacted by 
weather or other natural factors to such a degree that they become 
permanently unusable to eagles for reproductive purposes. For example, 
if a nest tree falls and the bald eagle nest retains its structure, the 
nest would no longer retain the official designation of an eagle nest 
as the substrate was substantively changed by the nest tree falling. 
Individuals and organizations may destroy and remove, without a permit, 
materials that formerly held the designation of an eagle nest but no 
longer meet the definition based on utility. However, individuals and 
organizations may not possess or collect these materials beyond what is 
necessary to dispose of the nest. Eggs, feathers, and other eagle parts 
are often naturally incorporated into nests with time. The Eagle Act 
prohibits possession, transportation, and sale of these items, either 
individually or in their incorporated state with former nesting 
materials, without Federal authorization.
    This proposed definition of ``eagle nest'' does not allow for 
modification of alternate (unused) nest substrate to a degree that 
prevents future breeding activity. Such activities will continue to 
constitute nest take.
    We also propose revising the definition of ``in-use nest'' to 
clarify that the eggs referred to in the definition of in-use nest must 
be viable. As with our proposed revision of the definition for ``eagle 
nest,'' we intend this change to ensure our definition is more relevant 
to what is biologically important to eagles. Nonviable eggs may persist 
in a nest or even become incorporated into a nest's structure. However, 
by their nature, these eggs have no promise of hatching. Under current 
definitions, permittees have been prevented from removing what is 
otherwise an alternate nest because of the presence of nonviable eggs. 
In implementing the revised definition, we would presume that eggs are 
viable unless documented evidence (e.g., absence of adults for several 
days, presence out of season) indicates otherwise.
    For clarity, we propose adding a definition of ``general permit'' 
to 50 CFR part 22 to distinguish general permits from the definition of 
``permit'' in 50 CFR 10.12. We interpret the statutory language 
requiring a permit to be procured from the Service for take of bald 
eagles for any purpose to include general permits proposed in this 
document as well as the more typical individual or specific permits 
(see 16 U.S.C. 668a).
    We propose clarifying in the regulation pertaining to illegal 
activities (50 CFR 22.12) that obtaining an eagle permit of any type 
for a continuing activity does not in and of itself resolve take that 
occurred before issuance of the permit. This provision is currently in 
Sec.  22.80(e)(8) but applies to all of the regulations in part 22 and 
is therefore better located in Sec.  22.12.
    We propose updating the definition of ``eagle management unit'' to 
include the current boundaries for those units to improve transparency 
to the public and general permit applicants. We also propose adding a 
definition of ``incidental take,'' as this term is used throughout 
these regulations and not defined.

Changes to Fees

    The Service proposes to retain the existing fees for specific 
permits with the following exceptions (proposed Sec.  13.11(d)(4)). The 
administration fee will be charged at the same time as the application 
fee. Thus, the cost of the Specific Permit, Eagle Incidental Take, is 
adjusted from $36,000 in the application fee column to a $28,000 
application fee and $8,000 administration fee. Additional $8,000 
administration fees are currently required every 5 years as part of a 
5-year permit reviews. We propose replacing 5-year permit reviews with 
as-needed permit reviews and requiring the $8,000 administration fee if 
significant changes are required as a result. Potential modifications 
that are likely to require this administration fee include updates to 
authorized take, reevaluation of compensatory mitigation requirements, 
evaluation of impacts of a new project size or arrangement (e.g., 
increased hazardous volume), or additional environmental review. The 
$500 amendment fee would be charged for substantive amendments to 
permit conditions that do not result in the significant changes that 
require an administration fee. Otherwise, permitting fees for specific 
permits remain unchanged.
    The Service proposes to create a fee structure for general permits 
(proposed Sec.  13.11(d)(4)). The application fee and administration 
fee would be charged at the time of application. We do not propose 
amendment fees as the automated nature of general permits would make 
substantive amendments unnecessary. We separate application and 
administration fees due to the different functions these fees serve.

[[Page 59610]]

Application fees pertain to processing a particular application whereas 
administration fees pertain to administering the permitting program as 
a whole. Consistent with this distinction, we propose not to waive 
administration fees when multiple permits are consolidated into a 
single permit (50 CFR 13.11(d)(2)) or for government agencies (50 CFR 
13.11(d)(3)). Pooled administration fees are necessary for us to 
administer the program as a whole and loss of those fees would 
jeopardize our ability to implement the proposed general-permit 
structure.

Administrative Changes

    Finally, the Service proposes the following administrative changes 
to the organizational structure of our eagle-take-authorization 
regulations to improve clarity. To reduce confusion, we propose 
redesignating the current subpart C ``Specific Eagle Permit 
Provisions'' as ``Eagle Possession Permits.'' We propose creating a new 
subpart E pertaining to ``Take of Eagles for Other Interests.'' This 
subpart will house regulations that authorize permits for the taking of 
eagles for the protection of other interests in any particular 
locality. We propose relocating the current regulations at Sec.  22.75 
(What are the requirements concerning permits to take golden eagle 
nests?) to Sec.  22.325 in subpart E and giving the section a new 
heading pertaining to golden eagle nest take for resource development. 
We also propose relocating the current regulations at Sec.  22.90 
pertaining to permits for bald eagle take exempted under the Endangered 
Species Act to Sec.  22.400 in subpart E.

Public Comments

    The public comment period begins with the publication of this 
document in the Federal Register and will continue through the date set 
forth above in DATES. We will consider all comments on the proposed 
rulemaking and draft environmental review that are received or 
postmarked by that date. Comments received or postmarked after that 
date will be considered to the extent practicable. Federally recognized 
Native American Tribes can request government-to-government 
consultation via letter submitted at any time during this rulemaking 
process.
    The Service is interested in public comments on all aspects of the 
proposed rule. Comments that were submitted on the ANPR were considered 
in the preparation of this proposed rule, are included in the 
rulemaking docket, and do not need to be resubmitted. In addition, the 
Service is specifically seeking information on the following:

    1. Are the anticipated number of annual permits to be issued for 
each permit type a reasonable estimate?
    2. Are the costs associated with each permit type reasonable 
estimates?
    3. For electric utilities, at what rate are power poles and 
other infrastructure planned for regular maintenance, 
rehabilitation, or reconstruction? What is the assumed life cycle of 
a typical power pole? How many utilities have an avian protection 
plan in place? At what rate do utilities schedule retrofits 
specifically of non-electrocution-safe equipment? Are the estimated 
costs associated with power-pole-retrofit strategies reasonable?
    4. We propose the use of abundance criteria as a threshold 
qualification for a wind energy general permit. Are there other 
eligibility criteria for wind-energy general permits, either based 
solely on population abundance or beyond population abundance, we 
should consider adopting that would provide certainty and simplicity 
in the permit process for eligible projects while still meeting the 
Eagle Protection Act's preservation standard, including the criteria 
analyzed in Alternative 2 of the DEA?
    5. Should the relative abundance thresholds for wind energy 
general permits (listed in table 1) be updated automatically based 
on new data, and if so, how often?
    6. Should the Service consider different thresholds for when a 
project is disqualified from general-permit eligibility, such as 
creating categories based on the generalized probability of 
detection?
    7. Is the amount of compensatory mitigation required under this 
proposed rule sufficient to meet the preservation standard, 
considering risk, and uncertainty?
    8. How should the Service analyze the potential cost savings to 
industry from this rulemaking, and does the public have data to 
bolster this analysis in the final rule?
    9. Are there estimates or projections of the spatial 
distribution of anticipated wind energy industry growth that are 
relevant to this proposed rulemaking?
    10. In the DEA, the Service estimates that retrofitting 11 power 
poles is required to offset one eagle. Assuming a retrofit costs 
$7,500, each credit is therefore assumed to cost $82,500 in the 
marketplace. Are these assumptions, the retrofit cost, and the 
market price of an ``eagle credit'' reasonable?
    11. How should the Service implement the proposed audit program? 
Are there costs we should consider that ensure accuracy of the 
results while reducing the burden to the public?

Information Sessions

    The Service will present information explaining this action in 
virtual information sessions during the public comment period. The 
purpose of each of these sessions is to provide the public with a 
general understanding of the background for this proposed rulemaking 
action, activities it would cover, alternative proposals under 
consideration, and the draft environmental documents for the proposed 
action. Unlike a public hearing, a public information session is not a 
forum for the submission of public comments.
    We will hold the following information sessions in webinar format. 
Sessions will start at the time noted. Sessions will last for up to 2 
hours but may end early if there are no further comments.
    Sessions for federally recognized Native American Tribes:
    [squ] On October 19, 2022, at 2 p.m. Eastern Time.
    [squ] On November 2, 2022, at 12 p.m. Eastern Time.
    Sessions for the general public:
    [squ] On October 20, 2022, at 12 p.m. Eastern Time.
    [squ] On November 3, 2022, at 2 p.m. Eastern Time.
    Registration instructions and updated session information can be 
accessed on the Service web page at https://www.fws.gov/regulations/eagle or may be obtained from the person listed under FOR FURTHER 
INFORMATION CONTACT. Please note that the Service will ensure that the 
information sessions will be accessible to members of the public with 
disabilities.
    To promulgate a final rule and prepare a final environmental 
assessment pursuant to the National Environmental Policy Act, we will 
take into consideration all comments and any additional information 
received. Please note that submissions merely stating support for or 
opposition to the proposed action and alternatives under consideration, 
without providing supporting information, will be noted but not 
considered by the Service in the final rule and environmental analysis. 
Please consider the following when preparing your comments:
    (a) Be as succinct as possible.
    (b) Be specific. Comments supported by logic, rationale, and 
citations are more useful than opinions.
    (c) State suggestions and recommendations clearly with an 
expectation of what you would like the Service to do.
    (d) If you propose an additional alternative for consideration, 
please provide supporting rationale and why you believe it to be a 
reasonable alternative that would meet the purpose and need for our 
proposed action.
    (e) If you provide alternate interpretations of science, please 
support your analysis with appropriate citations.

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with

[[Page 59611]]

this action. Before including your address, phone number, email 
address, or other personal identifying information in your comment, you 
should be aware that the entire comment--including your personal 
identifying information--may be made publicly available at any time. 
While you can ask us in your comment to withhold your personal 
identifying information from public review, we cannot guarantee that we 
will be able to do so. Comments and materials we receive, as well as 
supporting documentation we use in preparing the environmental 
analysis, will be available for public inspection, by appointment, 
during normal business hours at the U.S. Fish and Wildlife Service 
Headquarters (see FOR FURTHER INFORMATION CONTACT, above).

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this proposed rule is significant.
    Executive Order (E.O.) 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. E.O. 13563 directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.
    Table 2 below shows the permit count and cost for the current 
permitting program, the expected number of permits and average permit 
costs under the proposed rule, and the estimated marginal costs and 
impacts between the existing and the proposed rule. Additional analysis 
is available in the supporting environmental assessment.

                           Table 2--Average Annual Cost and Permit Count Comparison Between Existing Program and Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Current program                         Proposed Rule                Marginal cost
                                                        ------------------------------------------------------------------------------    change from
          Type of permit                  Factors         Number of annual    Fees and costs   Number of  annual   Fees and costs per  existing  program
                                                              permits           per permit          permits              permit        to  proposed rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wind Energy Project (General) \1\  Permit Application                    0                 $0                 74  $500...............               $500
                                    Costs.
                                   Average Compensatory                                     0                     42,000.............             42,000
                                    Mitigation Costs.
                                   Average                                                  0                     97,500.............             97,500
                                    Administration
                                    (Monitoring) Costs.
                                   Average Cost Per                                         0                     140,000............            140,000
                                    Permit.
                                   Average Annual Cost                                      0                     10,360,000.........         10,360,000
                                    to Industry.
Wind Energy Project (Specific)...  Permit Application                    6             36,000                  6  36,000.............                  0
                                    Costs.
                                   Average Compensatory                               578,000                     1,000,000..........            422,000
                                    Mitigation Costs.
                                   Average                                          2,100,000                     2,100,000..........                  0
                                    Administration
                                    (Monitoring) Costs.
                                   Average Cost Per                                 2,714,000                     3,136,000..........            422,000
                                    Permit.
                                   Average Annual Cost                             16,284,000                     18,816,000.........          2,532,000
                                    to Industry.
Power Line Entities \2\..........  Permit Application                    0                  0                  4  500................                500
                                    Costs.
                                   Average                                                  0                     5,000-25,000.......       5,000-25,000
                                    Administration
                                    (Monitoring) Costs.
                                   Average Power Pole                                       0                     1,100,000 (if no             0-275,000
                                    Retrofit Costs.                                                                existing retrofit
                                                                                                                   strategy exists,
                                                                                                                   to be paid over 5
                                                                                                                   years).
                                   Average Cost Per                                         0                     5,500-300,500......      5,500-300,500
                                    Permit.
                                   Average Annual Cost                                      0                     22,000-1,202,000...   22,000-1,202,000
                                    to Industry.
Nest Disturbance \3\.............  Permit Application                   96            100-500                 96  100................            0-(400)
                                    Costs.
                                   Compensatory                                             0                     0..................                  0
                                    Mitigation Costs.
                                   Administration                                           0                     0..................                  0
                                    (Monitoring) Fee.
                                   Average Cost Per                                  100-$500                     100................           0-($400)
                                    Permit.
                                   Average Annual Cost                          9,600-$48,000                     9,600..............         0-(38,400)
                                    to Industry.
Nest Take \3\....................  Permit Application                   40            100-500                 40  100................            0-(400)
                                    Costs.

[[Page 59612]]

 
                                   Compensatory                                             0                     0..................                  0
                                    Mitigation Costs.
                                   Administration                                           0                     0..................                  0
                                    (Monitoring) Costs.
                                   Average Cost Per                                   100-500                     100................            0-(400)
                                    Permit.
                                   Average Annual Cost                           4,000-20,000                     4,000..............         0-(16,000)
                                    to Industry.
                                  ----------------------------------------------------------------------------------------------------------------------
    Average Annual Permits Counts                                      142  16,297,600-16,352                220  29,211,600-30,391,6  12,859,600-14,094
     and Costs \4\.                                                                      ,000                      00.                              ,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. There are no general permits for wind energy projects under the existing rule. For our analysis, we used a 36-turbine project example to calculate
  the fees and costs.
2. There are permits designed for power line entities under the existing rule. Under the proposed rule, these entities will not be required to pay
  compensatory mitigation costs but will be required to pay costs associated with retrofitting power poles. We estimate that 25% of power line entities
  will not have an existing retrofit strategy and will therefore be required to pay this cost
3. Compensatory mitigation rates for Nest Disturbance and Nest Take for golden eagles are required at a 1.2:1 ratio, however the take limit is zero.
4. Total costs for the existing and the marginal cost difference is expressed as a range of values based on estimating the total number of nest take and
  nest disturbance permits as either non-commercial or commercial. The actual value is likely somewhere between these figures.

    The maximum total estimated annual cost to industry for the 
proposed rule is $30,391,600. The maximum total estimated cost over 5 
years for all permits is $151,958,000. The average annual equivalent 
cost is $24,922,312 with a total net present value cost of $124,611,560 
using a 7% discount rate. The average annual equivalent cost is 
$27,836,926 with a total net present value of $139,184,629 at a 3% 
discount rate. These discount rates represent a range of values that 
the Office of Management and Budget recommend as a Federal program 
discount rate for benefit cost analysis for most Federal programs. The 
above costs represent the total gross cost of the proposed rule and do 
not reflect the costs associated with the existing regulations. The 
proposed rule is expected to create an estimated maximum $14,094,000 
dollars in new costs annually and $70,470,000 in new marginal costs 
over 5 years, as compared to the existing regulations. However, these 
new marginal costs are more than offset by savings to both industry and 
the Service in terms of reduced Eagle Protection Act enforcement costs 
and removed requirements for preconstruction monitoring and third-party 
monitoring. The anticipated 74 wind energy projects and 4 power line 
entities that annually receive and comply with a permit will no longer 
be subject to potential enforcement under the Eagle Protection Act, 
which can result in substantial legal costs, nor will they incur costs 
to estimate and reduce their legal risks, which may include biological 
surveys and hiring staff and attorneys. While this total reduced 
enforcement cost is not quantifiable due to limited data, the Service 
expects that such savings exceeds the total new costs associated with 
the proposed rule. The costs of the proposed rule are also offset by 
the ecosystem-services benefits associated with potential decreased 
take and increased populations of eagles. The Service requests specific 
public comment and data on the specific costs associated with existing 
enforcement frameworks and the ecosystem-services values associated 
with eagles.

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 
proposed 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 
potentially impacted and then estimates the economic impact of the 
rule.
    To assess the effects of the proposed rule on small entities, we 
focus on home-construction companies, wind-energy facilities, and 
electric-transmission companies. Although small, noncommercial, wind-
energy facilities such as single turbine facilities tied to public 
buildings could seek permits, we anticipate that most of the 
applications for wind-energy facilities will be for those that are 
commercial or utility in scale. Although businesses in other sectors, 
such as railroads, timber companies, and pipeline companies, could also 
apply for permits, we anticipate the number of permit applicants in 
such sectors would be very small, on the order of one to thirteen per 
year for each sector.
    Using the North American Industry Classification System (NAICS), 
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:
    [squ] fewer than 250 employees for ``Wind Electric Power Generation 
(NAICS sector 221115),

[[Page 59613]]

    [squ] fewer than 1,000 employees for ``Electric Power 
Distribution'' (NAICS sector 221122),
    [squ] fewer than 500 employees for ``Logging'' (NAICS sector 
113310),
    [squ] less than $36.5 million of average annual receipts for 
``Construction of Buildings'' (NAICS sectors 236115, 236116, 236117, 
236210, and 236220),
    [squ] less than $36.5 million of average annual receipts for 
``Highway, Street, and Bridge Construction'' (NAICS sector 237310),
    [squ] less than $15.0 million of average annual receipts for 
``Support Activities for Rail Transportation'' (NAICS sector 488210), 
and
    [squ] fewer than 1,500 employees for ``Gold Ore Mining'' (NAICS 
sector 212221).
    Table 3 below indicates the number of businesses within each 
industry and the estimated percentage of small businesses impacted by 
this rule.

                                               Table 3--Distribution and Potential Impact to Businesses 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Total firms/establishments           Small businesses potentially
                                                                             --------------------------------------           impacted by rule
                NAICS code                            Description               Number of all     Number of small  -------------------------------------
                                                                                  businesses         businesses           Number           Percentage
--------------------------------------------------------------------------------------------------------------------------------------------------------
221115...................................  Wind Electric Power Generation 2.                459                135                 22                 16
221122...................................  Electric Power Distribution 3....              1,233              1,169                  0                  0
113310...................................  Logging 4........................              7,992              7,977           up to 13                 <1
236115...................................  New Single-family Housing                     49,215             49,143           up to 13                 <1
                                            Construction (Except For-Sale
                                            Builders) 4.
236116...................................  New Multifamily Housing                        3,175              2,851           up to 13                 <1
                                            Construction (Except For-Sale
                                            Builders) 4.
236117...................................  New Housing For-Sale Builders 4..             15,483             15,099           up to 13                 <1
236118...................................  Residential Remodelers4..........            103,079            102,998           up to 13                 <1
236210...................................  Industrial Building Construction               2,997              2,847           up to 13                  1
                                            4.
236220...................................  Commercial and Institutional                  38,079             36,100           up to 13                 <1
                                            Building Construction 4.
237310...................................  Highway, Street, and Bridge                    8,826              8,198           up to 13                 <1
                                            Construction 4.
237990...................................  Other Heavy and Civil Engineering              4,165              4,052           up to 13                 <1
                                            Construction 4.
488210...................................  Support Activities for Rail                      564                484           up to 13                  3
                                            Transportation 4.
212221...................................  Gold Ore Mining 4................                147                132            up to 2                  2
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Data is from the latest SUSB tables that contain information on receipts, which is from 2017.
2 The number of potentially impacted small businesses is based on the distribution of businesses by enterprise size from 2017 SUSB data tables, the
  total number of estimated annual permits, and the small business standards threshold from SBA.
3 Permitting will be required at a large utility scale similar to existing Special Purpose Utility permits (SPUT permits) that the Service issues.
4 We estimate that the number of nest disturbance and nest take permits will be similar to the number issued over the last 5 years, 677. The non-
  electric and wind power generation NAICS represent sectors that have historically requested permits. We evenly distributed the estimated total amount
  of disturbance and take permits across all sectors, with the exception of Gold Ore Mining, for the 5-year period, which comes to 67 permits. Gold Ore
  Mining entities have historically only applied for 1 to 2 permits per year, or up to 10 over a 5-year period. We also assumed an evenly distributed
  number of permits across each year, 13, for the remainder of the sectors.

    In the last 5 years (2017 through 2022), the Service has issued 26 
permits to wind-generation facilities and 677 specific permits to other 
entities, which averages about 141 permits annually. For the 677 non-
wind specific permits, most were issued to businesses and to government 
agencies, and the remaining were issued to individuals. The number of 
specific permits over the first 5 years may be higher or lower than the 
existing permit program due to the creation of general permits and the 
remaining complexity associated with specific permits. General permits 
would allow the regulated community to apply for and obtain a permit 
more easily, particularly when projects are designed to comply with 
general-permit eligibility criteria. Specific permits would be 
available to wind energy project applicants that do not meet general 
permit eligibility criteria. Based on these assumptions, we are 
estimating that the number of specific permits under the proposed rule 
will be similar to the number of existing permits over the last 5 
years, which is close to 30 permits.
    Businesses that apply for nest take and nest disturbance permits 
typically include home construction, road construction, and various 
other construction projects. We are assuming that the number of nest 
take and nest disturbance permits will continue along this trend over 
the next 5 years. For this analysis, we evenly distributed those 
permits across industry sectors that best represent the NAICS industry 
sectors that have applied for permits historically, with the exception 
of Gold Ore Mining, which has historically only applied for 1 to 2 
permits annually. As a result, less than 1 to 2.5 percent of small 
businesses in NAICS sectors 236115, 236116, 236117, 236118, 236210, 
236220, 237310, 237990, 488210, 212221 will be impacted by this rule. 
The cost per entity for nest take and nest disturbance permitting under 
the proposed rule is minimal, totaling $100 per eagle/nest, per year. 
The minimal permit cost of these permits is not expected to result in a 
significant impact to small businesses in these sectors, regardless of 
the total percentage of small businesses impacted as a whole.
    The largest expected impacts to small businesses under the proposed 
rule would be an increase in the number of permits issued to wind-
generation facilities due to the changes being made in the application 
requirements and processes and the inclusion of power-line entities as 
eligible recipients of permits. It is expected that 16 percent of wind 
generation small businesses would be impacted by this rule, with the 
expected breakdown of permits by enterprise size category shown below 
in Table 5.
    Table 4 below shows the expected difference between 5-year costs 
for existing permits and 5-year costs for the proposed general permits 
for wind generation facilities. Wind generation facilities will pay 
less for a general permit under the proposed rule when

[[Page 59614]]

compared to the current costs associated with a standard permit under 
the existing regulations. The permit application fee would be reduced 
from $36,000 to $500 for a general permit. For our analysis, we used a 
36-turbine project as an example to calculate the fees and costs. The 
fees in the tables below are not flat fees but averages based on the 
turbine count. Section 5.2.5 in the Environmental Assessment found in 
the docket associated with this rule explains how these costs were 
calculated. Compensatory mitigation costs for general permits for a 
wind energy project with 36 turbines would average $42,000, a 
significant decrease from the existing specific permit cost of $578,000 
(assuming mitigation for 1.4 golden eagles per year, using our 
calculation from the EA of $82,500 as the cost of an eagle credit). The 
average costs for non-compensatory mitigation, monitoring, and other 
administrative tasks (permit application, record keeping, auditing, 
etc.) for a wind-energy project will average $97,500, a cost savings of 
nearly $2,000,000 from the existing specific permit cost of $2,100,000. 
The total estimated cost savings between an existing permit and 
proposed general permit is approximately $2,500,000. The total number 
of estimated permits shows an estimated overall increase in industry 
costs associated with permitting under this proposed rule, but only 
because the Service expects a substantial jump in participation across 
industry due to the improvements in the permit process and reduction in 
costs and time required per permit.

                                 Table 4--Wind General Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
                                                         Existing specific     New general        Cost savings
                     Cost category                           (average)          (average)          (average)
----------------------------------------------------------------------------------------------------------------
Permit Application Costs...............................            $36,000               $500            $35,500
Compensatory Mitigation Costs..........................            578,000             42,000            536,000
Administration (Monitoring) Costs......................          2,100,000             97,500          2,002,500
                                                        --------------------------------------------------------
    Total Cost.........................................          2,714,000            140,000          2,574,000
----------------------------------------------------------------------------------------------------------------

    Table 5 below displays the proposed new cost for specific permits 
under the proposed rule compared to the existing cost for specific 
permits under current regulations. Under the proposed rule, entities 
will pay $1,000,000 for compensatory mitigation, an increase of 
$422,000 from the existing $578,000 cost. These costs have increased 
due to updates in the estimated amount of required mitigation for 
projects in the specific permit category, which equate to 2.5 golden 
eagles annually. Using the calculation described in the EA that uses 
$82,500 as the cost of an eagle credit, this results in an average 
total of approximately $1,000,000 per project over a 5-year period for 
compensatory mitigation. There are no proposed changes to the permit 
application fee and entities will continue to pay their own monitoring 
costs estimated at $2.1 million over life of the permit. The total cost 
increase to entities getting a specific permit is $422,000.

                             Table 5--Wind Energy Specific Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
                                                         Existing specific     New specific       Cost savings
                     Cost category                           (average)          (average)          (average)
----------------------------------------------------------------------------------------------------------------
Permit Application Costs...............................            $36,000            $36,000                 $0
Compensatory Mitigation Costs..........................            578,000          1,000,000          (422,000)
Administration (Monitoring) Costs......................          2,100,000          2,100,000                  0
                                                        --------------------------------------------------------
    Total Cost.........................................          2,714,000          3,136,000          (422,000)
----------------------------------------------------------------------------------------------------------------

    Businesses in the ``wind electric power generation industry'' are 
defined as small if they have less than 250 employees. 2017 SUSB Annual 
Data Tables report the annual payroll amounts by industry that fall 
within enterprise size categories. The data for wind electric power 
generation does not contain a range for establishments under 250 
employees, the closest reporting range is less than 500 employees. The 
table below shows a range of receipts by enterprise size and 
establishment count as well as the projected percentage of receipts 
impacted by the proposed rule both at the individual establishments 
level and the total for that enterprise size. The wind energy project 
general permit cost is assumed to be paid in full at the time of the 
permit application, therefore the 5-year cost of $131,000 is assessed 
in the first year. This cost would then be assessed again at the 
renewal of their permit in 5 years. Due to this being a one-time cost 
that covers a 5-year period, this equates to at most one percent of 
total annual receipts by enterprise size (Table 6). As a result, this 
will not create a substantial impact on small businesses or specific 
industries. We base this determination on permit costs for general 
permits. The number of specific permits issued is expected to follow 
the same trend as under the current regulations, and permits are likely 
to be issued in areas of higher risk to eagles to large, complex 
facilities that are well above the industry standard payroll amount.

[[Page 59615]]



                                                      Table 6--Range of Receipts Impacted by Proposed Rule: Wind Electric Power Generation
                                                                               [Using 2017 SUSB Annual Data Table]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Average receipt
                                                                                                           for size (=     Annual cost per      Number of      Total annual %      Annual % of
                         Enterprise size 1                           Establishments    Annual receipts      receipt/         permit for      establishments      of receipts      receipts for
                                                                                          ($1,000)       establishments)    establishment       impacted         impacted by        impacted
                                                                                                            ($1,000)          ($1,000)         annually 2       proposed rule    establishments
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
01: Total.........................................................               459         8,001,761            17,433               130                74              0.12              0.75
02: <5 employees..................................................                45            80,905             1,798               130                 7              1.12              7.23
03: 5-9 employees.................................................                 8            14,478             1,810               130                 1              0.90              7.18
04:10-14 employees................................................                 7            15,873             2,268               130                 1              0.82              5.73
05: 15-19 employees...............................................                 8            39,960             4,995               130                 1              0.33              2.60
06: <20 employees.................................................                68           151,216             2,224               130                11              0.95              5.85
12: 50-74 employees...............................................                 9            98,897            10,989               130                 1              0.13              1.18
19: <500 employees................................................               135         1,469,292            10,884               130                22              0.19              1.19
24: 2,000-2,499 employees.........................................                12            75,879             6,323               130                 2              0.34              2.06
25: 2,500-4,999 employees.........................................                11            91,973             8,361               130                 2              0.28              1.55
26: 5,000+ employees..............................................               240         5,368,670            22,369               130                39              0.09              0.58
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1 NAICS thresholds for ``Wind Electric Power Generation'' (NAICS 221115) define small businesses as having fewer than 250 employees.
2 The number of establishments impacted annually is based on the weighting of the number of establishments in that enterprise size compared to the total number of establishments. That weight
  value was multiplied by the total number of estimated annual permits (74) to derive the figures shown. Note that the total sum of <500 and the enterprise sizes greater than 500 will not
  total 74 due to missing enterprise size categories from the SUSB 2017 data tables.

    While electric power distribution companies are currently eligible 
to apply for a specific permit, under the proposed rule these entities 
will become eligible to apply for general permits. The permit 
application fee for these general permits is $500 and the monitoring 
fee is $5000 per State within which the utility operates. The costs for 
power pole retrofits called for under the pro-active retrofit strategy 
are estimated to average $1.1 million over the 5-year permit period and 
would be evenly distributed annually for an average annual total of 
$220,000. Many larger utilities have existing avian protection and 
retrofit strategies in place, and we expect that the retrofit 
requirement for a general permit will not create substantial new costs 
for those entities. However, the Service does not have data on the 
number of utilities that have avian protection or retrofit strategies. 
For our analysis, we are assuming that 25% of entities do not have an 
avian protection/retrofit strategy in place. The total assessed cost 
per entity is expected to range from $5,500 to $225,100 within the 
first year of the permit term based on whether a retrofit strategy is 
required. Costs would be further ameliorated by completing required 
retrofits during regularly scheduled maintenance, reconstruction, and 
rehabilitation of infrastructure. The marginal costs of making power 
poles electrocution-safe when work is already planned on those poles is 
relatively low. The Service assumes that the primary interest in 
permits in the first 5 years would be from firms with existing special-
purpose-utility permits to salvage dead birds. These firms with known 
incidental take of eagles would benefit from a permit authorizing that 
take. No existing special-purpose-utility permit holder is a small 
business, and therefore there would not be a substantial impact to 
small businesses from this proposed rule.
    Table 7 below shows the difference between existing permit program 
and the 5-year costs under the proposed rule which does incorporate 
power line entities.

                              Table 7--Power Line Entities Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
                                    Existing permit
          Cost category                 program               Proposed rule                 Cost savings
----------------------------------------------------------------------------------------------------------------
Permit Application Costs.........            $36,000                          $500                       $35,500
Power Pole Retrofit Costs 1......                  0                     1,100,000                   (1,100,000)
Administration (Monitoring) Costs                  0                 5,000-$25,000
                                  ------------------------------------------------------------------------------
    Total........................             36,000               5,500-1,125,500            30,500-(1,089,500)
----------------------------------------------------------------------------------------------------------------
1 We are assuming 25% of permittees will not have a retrofit strategy in place, and therefore will be required
  to pay this cost.

    There is no change in the amount homeowners would pay per nest per 
year. Commercial businesses would pay the same fees as homeowners under 
this rule. A commercial business applying for what is currently termed 
a standard permit would have to pay $100 per nest per year (a decrease 
of $400). Businesses in the construction industry are defined as small 
if they have annual revenue less than $36.5 million. Depending on the 
type of permit applications submitted by an individual small business, 
the permit fees would represent less than one percent of revenue for 
this size of business. Thus, the changes in standard permit fees would 
not have a significant economic effect on a substantial number of small 
businesses in the construction sectors. The changes in permit 
application fees are shown in tables 8 and 9.
    Table 8 shows the expected difference between the existing nest 
disturbance permit annual costs and the proposed specific permit annual 
costs.

[[Page 59616]]



                            Table 8--Annual Nest Disturbance Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
                                                                   Existing nest     New nest
                          Cost category                             disturbance     disturbance    Cost savings
----------------------------------------------------------------------------------------------------------------
Permit Application Costs........................................        $100-500            $100         $0-$400
----------------------------------------------------------------------------------------------------------------

    Table 9 shows the expected difference between the existing nest 
take permit annual costs and the proposed specific permit annual costs.

                                   Table 9--Nest Take Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
                                                                   Existing nest
                          Cost category                                take        New nest take   Cost savings
----------------------------------------------------------------------------------------------------------------
Permit Application Costs........................................        $100-500            $100         $0-$400
----------------------------------------------------------------------------------------------------------------

    The proposed rule is expected to create an overall savings due to 
reduced costs for general permits compared to existing individual 
permits. The proposed rule is expected to create additional savings to 
both industry and the Service in terms of reduced Eagle Act enforcement 
costs. Entities that receive and comply with a permit will no longer be 
subject to potential enforcement under the Eagle Act, which can result 
in substantial legal costs, nor will they incur costs to estimate and 
reduce their legal risks, which may include biological surveys and 
hiring staff and attorneys. While this total reduced enforcement cost 
is not quantifiable due to limited data, the Service expects that it 
exceeds the total of new costs associated with the proposed rule.
    For these reasons, we certify that this rule will not have a 
significant impact on a substantial number of small entities. The 
proposed rule impacts a substantial number of small businesses in NAICS 
sector 221115, ``Wind Electric Power Generation''; however, the 
financial impacts to individual businesses are not significant. The 
number of businesses belonging to other industries impacted is not 
substantial and the magnitude of those impacts is not significant. For 
these reasons, we certify that this rule will not have a significant 
impact on a substantial number of small entities. Based on the 
available information, we certify that this proposed rule would not 
have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). Therefore, an initial regulatory flexibility analysis is not 
required, and a small entity compliance guide is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, we have 
determined the following:
    a. This proposed rule will not ``significantly or uniquely'' affect 
small governments in a negative way. A small government agency plan is 
not required.
    b. This proposed 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 (E.O. 12630)

    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 (E.O. 13132)

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

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This proposed rule contains existing and new information 
collections. All information collections require approval by the Office 
of Management and Budget (OMB) under the Paperwork Reduction Act of 
1995 (PRA, 44 U.S.C. 3501 et seq.). We 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. The OMB has reviewed 
and approved the information collection requirements associated with 
eagle permits and fees and assigned the OMB Control Number 1018-0167.
    In accordance with the PRA and its implementing regulations at 5 
CFR 1320.8(d)(1), we provide the general public and other Federal 
agencies with an opportunity to comment on our proposal to revise OMB 
Control Number 1018-0167. This input will help us assess the impact of 
our information collection requirements and minimize the public's 
reporting burden. It will also help the public understand our 
information collection requirements and provide the requested data in 
the desired format.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the 
public and other Federal agencies to comment on any aspect of this 
proposed information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.

[[Page 59617]]

    Comments that you submit in response to this proposed rulemaking 
are a matter of public record. Before including your address, phone 
number, email address, or other personal identifying information in 
your comment, you should be aware that your entire comment--including 
your personal identifying information--may be made publicly available 
at any time. While you can ask us in your comment to withhold your 
personal identifying information from public review, we cannot 
guarantee that we will be able to do so.
    The Bald and Golden Eagle Protection Act (Eagle Act; 16 U.S.C. 668-
668d) prohibits take of bald eagles and golden eagles except pursuant 
to Federal regulations. The Eagle Act regulations at title 50, part 22 
of the CFR define the ``take'' of an eagle to include the following 
broad range of actions: To ``pursue, shoot, shoot at, poison, wound, 
kill, capture, trap, collect, destroy, molest, or disturb.'' The Eagle 
Act allows the Secretary of the Interior to authorize certain otherwise 
prohibited activities through regulations. Service permit applications 
associated with eagles are each tailored to a specific activity based 
on the requirements for specific types of permits. We collect standard 
identifier information for all permits. The information that we collect 
on applications and reports is the minimum necessary for us to 
determine if the applicant meets/continues to meet issuance 
requirements for the particular activity. Standardizing general 
information common to the application forms makes filing of 
applications easier for the public as well as expedites our review of 
applications. In accordance with Federal regulations at 50 CFR 13.12, 
we collect standard identifier information for all permits, such as:
    [squ] Applicant's full name and address (street address, city, 
county, State, and zip code; and mailing address if different from 
street address); home and work telephone numbers; and a fax number and 
email address (if available), and
    [squ] If the applicant resides or is located outside the United 
States, an address in the United States, and, if conducting commercial 
activities, the name and address of his or her agent that is located in 
the United States; and
    [squ] If the applicant is an individual, the date of birth, 
occupation, and any business, agency, organizational, or institutional 
affiliation associated with the wildlife or plants to be covered by the 
license or permit; or
    [squ] If the applicant is a business, corporation, public agency, 
or institution, the tax identification number; description of the 
business type, corporation, agency, or institution; and the name and 
title of the person responsible for the permit (such as president, 
principal officer, or director);
    [squ] Location where the requested permitted activity is to occur;
    [squ] Certification containing the following language:
    [squ] I hereby certify that I have read and am familiar with the 
regulations contained in title 50, part 13, of the Code of Federal 
Regulations and the other applicable parts in subchapter B of chapter I 
of title 50, Code of Federal Regulations, and I further certify that 
the information submitted in this application for a permit is complete 
and accurate to the best of my knowledge and belief. I understand that 
any false statement herein may subject me to suspension or revocation 
of this permit and to the criminal penalties of 18 U.S.C. 1001.
    [squ] Desired effective date of permit (except where issuance date 
is fixed by the part under which the permit is issued);
    [squ] Date;
    [squ] Signature of the applicant; and
    [squ] Such other information as the Director determines relevant to 
the processing of the application, including, but not limited to, 
information on the environmental effects of the activity consistent 
with 40 CFR 1506.5 and Departmental procedures at 516 Department Manual 
(DM) 6, appendix 1.3A.
    In addition to the general permitting requirements outlined in 
Federal regulations at 50 CFR 13.12, applications for any permit under 
50 CFR part 22 must contain:
    [squ] Species of eagle and number of such birds, nests, or eggs 
proposed to be taken, possessed, or transported;
    [squ] Specific locality in which taking is proposed, if any;
    [squ] Method of proposed take, if any;
    [squ] If not taken, the source of eagles and other circumstances 
surrounding the proposed acquisition or transportation;
    [squ] Name and address of the public museum, public scientific 
society, or public zoological park for which they are intended; and
    [squ] Complete explanation and justification of the request, nature 
of project or study, number of specimens now at the institution, reason 
these are inadequate, and other appropriate explanations.
    The proposed revisions to existing and new reporting and/or 
recordkeeping requirements identified below require approval by OMB:
    (1) Administrative Updates--On January 7, 2022, the Service 
published a final rule (87 FR 876) making administrative updates to 50 
CFR parts 21 and 22. We captured the associated administrative updates 
to the CFR references for part 22 in the updated versions of the forms 
in this collection being submitted to OMB for approval with this 
renewal/revision request.
    (2) Revision to Form 3-200-71--We are proposing to split the 
currently approved Form 3-200-71, ``Eagle Take Associated with but not 
the Purpose of an Activity (Incidental Take)'' into three separate 
forms as follows:
    a. Form 3-200-71, ``Eagle Incidental Take''--General and Specific,
    b. Form 3-200-91, ``Eagle Disturbance Take''--General and Specific. 
and
    c. Form 3-200-92, ``Eagle Incidental Take (Power Lines)''--General.
    We further describe the proposed changes below:
    a. (Revised Title) Form 3-200-71, ``Eagle Incidental Take''--
General and Specific--The revision to Form 3-200-71 would authorize the 
incidental killing or injury of bald eagles and golden eagles 
associated with the operation of wind energy projects. General eagle 
permits are valid for 5 years from the date of registration. Specific 
eagle permits may be valid for up to 30 years. In addition to the 
standardized information required by 50 CFR 13.12, permit application 
requirements include submission of the following information: requested 
permit duration; description of the activity that will incidentally 
take eagles; justification for why the take is necessary; location; 
description of eagle activity in the area and location and history of 
eagle use of known nests, foraging areas, and roost sites; factors that 
may contribute to the disturbance of eagles (if applicable); measures 
to minimize impacts to eagles; and names of persons that may be 
carrying out the activity that will incidentally take eagles.
    In addition, permit applications associated with wind energy 
incidental take permits may require the following:
    [squ] Post-Construction Monitoring--Post-construction monitoring 
fatality estimation must be based on 2 or more years of eagle fatality 
monitoring that meet the Service's minimum fatality monitoring 
requirements for specific eagle permits.
    [squ] Adaptive Management Plan--Upon the discovery of the third and 
fourth bald eagle or three golden eagle injuries or mortalities at a 
project, the permittee must provide the Service with their adaptive 
management plan and a description and justification of which adaptive 
management approaches will be implemented.

[[Page 59618]]

    [squ] Annual Report--Permit conditions may require the submission 
of annual reports to the Service.
    [squ] Compensatory Mitigation--For wind energy specific eagle 
permits, the permittee must implement the compensatory mitigation 
requirements on the face of their permit. For wind energy general eagle 
permits, the permittee must obtain eagle credits to the nearest tenth 
of an eagle for every cubic-meter of hazardous volume of their project 
from a Service-approved conservation bank or in-lieu fee program.
    The Service will use the information collected via the form to 
track whether the take level is exceeded or is likely to be exceeded, 
to determine that the take is necessary, and that the take will be 
compatible with the preservation of eagles.
    b. (Proposed Title--NEW) Form 3-200-91, ``Eagle Disturbance 
Take''--General and Specific--Applicants may apply for an Eagle 
Disturbance Permit if their activity may result in incidental 
disturbance of a golden eagle nest, incidental disturbance of a bald 
eagle nest, or disturbance to a foraging area. Disturbance General 
Eagle Permits issued under this section are valid for a maximum of 1 
year. The tenure of Disturbance Specific Eagle Permits is set forth on 
the face of the permit and may not exceed 5 years. In addition to the 
standardized information required by 50 CFR 13.12, permit application 
requirements include submission of the following information: the 
species of eagle sought to be covered by the permit, as well as the 
method of take (such as kill/injure, disturbance, alternate nest, or 
in-use nest take); a description of the activity to be authorized, 
including the location, seasonality, and duration of the activity; the 
description must include a justification of why there is no practicable 
alternative to take that would protect the interest to be served; 
duration of the permit requested; payment of required application and 
administration fee(s) (see Sec.  13.11(d)(4)); and, if required, 
implementation of eagle credits by a Service-approved in-lieu fee 
program.
    The Service will use the information via the form to track whether 
the take level is exceeded or is likely to be exceeded, to determine 
that the take is necessary, and that the take will be compatible with 
the preservation of eagles.
    c. (Proposed Title--NEW) Form 3-200-92, ``Eagle Incidental Take 
(Power Lines)''--General--The purpose of this new permit application is 
to authorize the incidental killing or injury of bald eagles and golden 
eagles associated with power line activities. Power line general eagle 
permits are valid for 5 years. Specific eagle permits may be valid for 
up to 30 years. In addition to the standardized information required by 
50 CFR 13.12, permit application requirements include submission of the 
following information: the species of eagle sought to be covered by the 
permit, as well as the method of take; a description of the activity 
for which take of eagles is to be authorized, including the location, 
seasonality, and duration of the activity, and a justification of why 
there is no practicable alternative to take that would protect the 
interest to be served; duration of the permit requested; payment of 
required application and administration fee(s) (see 50 CFR 
13.11(d)(4)); and, if required, implementation of eagle credits by a 
Service-approved in-lieu fee program.
    In addition, permit applications associated with incidental take 
permits for power lines may require the following:
    [msqu] Avian Protection Plan--An Avian Protection Plan (APP) is 
developed through a cooperative partnership between power companies and 
the Service. The Service does not review or approve the APP, but we 
will reference it if there is enforcement action or in cases in which 
we use discretion and do not enforce the take issue. The APP delineates 
a program designed to reduce the operational and avian risks that 
result from avian interactions with power line infrastructure with the 
overall goal of reducing avian mortality. The four strategies defined 
below (collision response, eagle shooting response, proactive retrofit, 
and reactive retrofit) may be components of an avian protection plan:
    [msqu] Collision Response Strategy--A plan that describes the steps 
the permittee will take to identify, assess, and respond to eagle 
collisions with power line infrastructure. The assessment should 
include the species, habitat, daily and seasonal migration patterns, 
eagle concentration areas, and other local factors that might be 
contributing to eagle collisions. The response options should consider 
eagle collisions in the engineering design (e.g., burying the line, 
rerouting the line, or modifying the line to reduce the number of 
wires), habitat modification, and marking the line.
    [msqu] Eagle Shooting Response Strategy--A plan to respond to eagle 
shooting events where one or more eagles are discovered near power line 
infrastructure and the cause of death is shooting. The strategy must 
outline the steps to identify eagle shooting, options for response, and 
implementation of response.
    [msqu] Proactive Retrofit Strategy--A plan to convert existing 
infrastructure to electrocution-safe. The proactive retrofit strategy 
must include how poles are identified as not electrocution-safe, 
prioritized for retrofit, designed, and implemented. The proactive 
retrofit strategy must identify annual targets for retrofitting.
    [msqu] Reactive Retrofit Strategy--A plan to respond to incidents 
where eagles are electrocuted or killed. The reactive retrofit strategy 
must include how electrocutions are detected and identified. Reactive-
retrofit poles must be based on risk to eagles and not other factors, 
such as convenience. The pole that caused the electrocution must be 
retrofit, unless the pole already provides sufficient separation by 
design or is fully insulated by insulators in good condition. A total 
of 11 poles or a \1/2\-mile segment must be retrofit, whichever is 
less. The most typical pole selection is the pole that caused the 
electrocution and five poles in each direction. However, if it is 
better for eagles for the project proponent to retrofit other poles in 
the circuit that are not electrocution-safe, those poles may be 
retrofit, prioritizing the least safe poles most adjacent to the 
electrocution. Poles outside of the circuit that caused the 
electrocution may be retrofit only if all poles in the circuit are 
already electrocution-safe.
    [msqu] Annual Report--Permit conditions may require the submission 
of annual reports to the Service.
    The Service will use the information via the form to track whether 
the take level is exceeded or is likely to be exceeded, to determine 
that the take is necessary, and that the take will be compatible with 
the preservation of eagles.
    (3) Revision to Form 3-200-72--We are proposing to revise Form 3-
200-72, ``Eagle Nest Take'' as described below:
    Form 3-200-72 is used to apply for authorized take of bald eagle 
nests or golden eagle nests, including relocation, removal, and 
otherwise temporarily or permanently preventing eagles from using the 
nest structure under definitions in proposed 50 CFR 22.300(b). General 
permits are available for bald eagle nest take for emergency, health 
and safety, or a human-engineered structure, or, if located in Alaska, 
bald eagle nest take for other purposes. General permits authorize bald 
eagle nest removal as well as subsequent nesting attempts on the same 
nesting substrate and within \1/2\ mile of that substrate for the 
duration of

[[Page 59619]]

the permit. Take of an additional eagle nest(s) more than a \1/2\ mile 
away requires additional permit(s). General permits issued under this 
proposed section are valid until the start of the next breeding season, 
not to exceed 1 year. The tenure of specific permits is set forth on 
the face of the permit and may not exceed 5 years.
    In addition to the standardized information required by 50 CFR 
13.12, permit application requirements include submission of the 
following information:
    [squ] Apply as Federal, State, or Tribal agency responsible for 
implementing actions for species protection.
    [squ] Include documentation demonstrating the following:
    [squ] Describe relevant management efforts to protect the species 
of concern.
    [squ] Identify how eagles are a limiting factor to survival of the 
species using the best available scientific information and data. 
Include a description of the mechanism of that threat.
    [squ] Explain how take of eagle nest(s) is likely to have a 
positive outcome on recovery for the species.
    [squ] Arborist reports (in the case of hazard tree removal).
    In addition, permit applications associated with eagle nest take 
may require the following:
    [squ] Monitoring--If a foster nest is used, the permittee may be 
required to monitor the nest to ensure nestlings or eggs are accepted 
by the foster eagles. We updated the burden for monitoring requirements 
associated with eagle nest take in the separate monitoring information 
collection requirement.
    Proposed Changes--We propose changes in the general permit 
questions as follows:
    [squ] The species of eagle sought to be covered by the permit, as 
well as the method of take (such as kill/injure, disturbance, alternate 
nest, or in-use nest take).
    [squ] A description of the activity for which take of eagles is to 
be authorized, including the location, seasonality, and duration of the 
activity. The description must include a justification of why there is 
no practicable alternative to take that would protect the interest to 
be served.
    [squ] Duration of the permit requested.
    [squ] Payment of required application and administration fee(s) 
(see 50 CFR 13.11(d)(4)); and
    [squ] If required, implementation of eagle credits by a Service-
approved in-lieu fee program.
    The Service will use the information via the form to track whether 
the take level is exceeded or is likely to be exceeded, to determine 
that the take is necessary, and that the take will be compatible with 
the preservation of eagles.
    (4) Reporting Requirements--Submission of reports is generally on 
an annual basis, although some are dependent on specific transactions. 
Additional monitoring and report requirements exist for permits issued 
under 50 CFR part 22. Permittees must submit an annual report for every 
year the permit is valid and for up to 3 years after the activity is 
completed.
    a. (New Reporting Requirement) Report Take of Eagles (3rd and 4th 
Eagles) (50 CFR 22.250(d)(2) and (3))--Permittees must notify the 
Service in writing within 2 weeks of discovering the take of a third or 
fourth eagle of either species. The notification must include the 
reporting data required in their permit conditions, their adaptive 
management plan, and a description and justification of which adaptive 
management approaches they will be implementing. Upon notification of 
the take of the fourth eagle of either species, the project may 
continue to operate through the term of the existing general permit, 
but the project proponent is denied from obtaining future general 
permits for incidental take for that project.
    (5) Change in Administration Fees (State, Local, Tribal, or Federal 
Agencies)--State, local, Tribal, and Federal government agencies, and 
those acting on their behalf, are exempt from processing fees.
    Proposed Change--This rule proposes a change to the Service's 
practice of not charging administration fees for eagle permits under 50 
CFR part 22 to any State, local, Tribal, or Federal government agency, 
or to any individual or institution acting on behalf of such agency. 
With this proposed rule, these government agencies would be required to 
pay administrative fees to cover the costs associated with Service-led 
program monitoring.
    (6) (NEW--Existing In Use Without OMB Approval) Labeling 
Requirement--Regulations at 50 CFR 22.4 require all shipments 
containing bald or golden eagles, alive or dead, their parts, nests, or 
eggs to be labeled. The shipments must be labeled with the name and 
address of the person the shipment is going to, the name and address of 
the person the shipment is coming from, an accurate list of contents by 
species, and the name of each species.
    (7) (NEW--Existing In Use Without OMB Approval) Requests for 
Reconsideration Associated with Eagle Permits (Suspension and 
Revocation)--Persons notified of the Service's intention to suspend or 
revoke their permit may request reconsideration by complying with the 
following:
    [squ] Within 45 calendar days of the date of notification, submit 
their request for reconsideration to the issuing officer in writing, 
signed by the person requesting reconsideration or by the legal 
representative of that person.
    [squ] The request for reconsideration must state the decision for 
which reconsideration is being requested and shall state the reason(s) 
for the reconsideration, including presenting any new information or 
facts pertinent to the issue(s) raised by the request for 
reconsideration.
    [squ] The request for reconsideration shall contain a certification 
in substantially the same form as that provided by 50 CFR 13.12(a)(5). 
If a request for reconsideration does not contain such certification, 
but is otherwise timely and appropriate, it shall be held and the 
person submitting the request shall be given written notice of the need 
to submit the certification within 15 calendar days. Failure to submit 
certification shall result in the request being rejected as 
insufficient in form and content.
    (8) (NEW--Existing In Use Without OMB Approval) Compensatory 
Mitigation--Compensatory mitigation 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. Compensatory mitigation may also be required when there is 
concern regarding the persistence of the local-area population of the 
project area, based on publicly available information. Except as 
restricted otherwise, compensatory mitigation may include in-lieu fee 
programs, conservation banks, other third-party mitigation projects, or 
arrangements and permittee-responsible mitigation. Except as restricted 
otherwise, compensatory mitigation may include in-lieu fee programs, 
conservation banks, other third-party mitigation projects, or 
arrangements and permittee-responsible mitigation.
    Compensatory mitigation must be approved by the Service and may 
include conservation banks, in-lieu fee programs, other third-party 
mitigation projects, or arrangements and permittee-responsible 
mitigation. To obtain approval, the permittee must submit a mitigation 
plan to the Service sufficient to demonstrate that the standards set

[[Page 59620]]

forth in proposed Sec.  22.220(b) can be met, including a description 
of the number of credits to be provided, the Service's Eagle Management 
Units (EMU's) that will be implemented, and an explanation of the 
rationale for this determination. The Service must approve the 
mitigation plan before credits can be issued.
    (9) (NEW--Existing In Use Without OMB Approval) Single Application 
for Multiple Activities (50 CFR 13.11(d)(1))--When regulations require 
more than one type of permit, applicants may submit a single 
application, provided the single application contains all of the 
information required by the separate applications for each permitted 
activity. In instances where more than one permitted activity is 
consolidated into one permit, the issuing office will charge the 
highest single fee for the activity permitted. If the activity spans 
multiple regions, applications should be submitted to the region of the 
applicant's U.S. mailing address. Administration fees are not waived 
for single applications covering multiple activities.
    We also propose to renew the existing reporting and/or 
recordkeeping requirements identified below:
    (1) Form 3-200-14, ``Eagle Exhibition''--This form is used to apply 
for a permit to possess and use eagles and eagle specimens for 
educational purposes. In addition to the standardized information 
required by 50 CFR 13.12, permit application requirements include 
submission of the following information: type of eagle(s) or eagle 
specimens; status of other required authorizations (State, local, 
Tribal); description of the programs that will be offered and how the 
eagles will be displayed; experience of handlers; and information about 
enclosures, diet, and enrichment for the eagles. The Service uses the 
information collected via the form to determine that the eagles are 
legally acquired and will be used for bona fide conservation education, 
and in the case of live eagles, will be housed and handled under safe 
and healthy conditions.
    (2) Form 3-200-15a, ``Eagle Parts for Native American Religious 
Purposes''--This application form is used by enrolled members of 
federally recognized Tribes to provide them authorization to acquire 
and possess eagle feathers and parts from the Service's National Eagle 
Repository (NER). The permittee also uses the form to make additional 
requests for eagle parts and feathers from the NER. The form collects 
the following information: name of the Tribe; Tribal enrollment number 
of the individual applicant; a signed Certification of Enrollment; 
inmate specific information in cases where applicants are incarcerated 
(inmate number, institution, contact information for the institute's 
chaplain); and the specific eagle parts and/or feathers desired by the 
applicant. The Service uses the information collected via the form to 
verify that the applicant is an enrolled member of a federally 
recognized Tribe, and what parts and/or feathers the applicant is 
requesting.
    (3) Form 3-200-16, ``Take of Depredating Eagles & Eagles that Pose 
a Risk to Human or Eagle Health or Safety--Annual Report''--Applicants 
use this form to obtain authorization to take (trap, collect, haze) 
eagles that depredate on wildlife or livestock, as well as eagles 
situated where they pose a threat to human or their own safety. In 
addition to the standardized information required by 50 CFR 13.12, 
permit application requirements include submission of the following 
information: status of other required authorizations (State, local, 
Tribal); the species and estimated number of eagles causing the 
problem; what the damage or risk consists of; location; method of take; 
alternatives taken that were not effective; and a description of the 
proposed long-term remedy. The Service uses the information collected 
via the form to determine the take is necessary to protect the 
interest; other alternatives have been considered; and the method of 
take is humane and compatible with the preservation of eagles.
    (4) Form 3-200-18, ``Take of Golden Eagle Nests During Resource 
Development or Recovery''--This application is used by commercial 
entities engaged in resource development or recovery operations, such 
as mining or drilling to obtain authorization to remove or destroy 
golden eagle nests. In addition to the standardized information 
required by 50 CFR 13.12, permit application requirements include 
submission of the following information: location of the property; the 
status of other required authorizations; the type of development or 
recovery operation; the number of nests to be taken; the activity that 
involves the take of the nest; the disposition of the nests once 
removed (or destroyed); the duration for which the authorization in 
requested; and a description of the mitigation measures that will be 
implemented. The Service uses the information collected via the form to 
determine that the take is necessary and will be compatible with the 
preservation of eagles.
    (5) Form 3-200-77, ``Native American Eagle Take for Religious 
Purposes''--Federally recognized Native American Tribes use this form 
to apply for authorization to take eagles from the wild for Tribal 
religious purposes. In addition to the standardized information 
required by 50 CFR 13.12, permit application requirements include 
submission of the following information: status of other required 
authorizations; location of proposed take; statement of consent by the 
land owner or land manager if not on Tribal land; species, number, and 
age class of eagles; whether the eagles will be collected alive and 
held in captivity; intended disposition of parts and feathers; and the 
reason why eagles obtained by other means do not meet the Tribe's 
religious needs. The Service uses the information obtained via the form 
to determine the take is necessary to meet the Tribe's religious needs, 
that they received consent of the landowner, the take is compatible 
with the preservation of eagles, and any eagles kept alive will be held 
under humane conditions.
    (6) Form 3-200-78, ``Native American Tribal Eagle Aviary''--
Federally recognized Native American Tribes use this form to apply for 
authorization to keep live eagles for Tribal religious purposes. In 
addition to the standardized information required by 50 CFR 13.12, 
permit application requirements include submission of the following 
information: descriptions, photographs and/or diagrams of the 
enclosures where the eagles will be housed, and number of eagles that 
will be kept in each; status of other required authorizations; names 
and eagle-handling experience of caretakers; veterinarian who will 
provide medical care; and description of the diet and enrichment the 
Tribe will provide the eagles. The Service uses the information 
collected via the form to ensure the Tribe has the appropriate 
facilities and experience to keep live eagles safely and humanely.
    (7) Form 3-200-82, ``Bald Eagle or Golden Eagle Transport into the 
United States for Scientific or Exhibition Purposes''--This application 
is used by researchers and museums to obtain authorization to 
temporarily bring eagle specimens into, or take such specimens out of, 
the United States. In addition to the standardized information required 
by 50 CFR 13.12, permit application requirements include submission of 
the following information: documentation that the specimen was legally 
obtained; documentation that the applicant meets the definition of a 
``public'' institution as required under statute; status of other

[[Page 59621]]

required authorizations (State, local, Tribal); description of the 
specimen(s); country of origin; name of and contact information for the 
foreign institution; scientific or exhibition purposes for the 
transport of specimens; locations where the item will be exhibited (if 
applicable); dates and ports of departure/arrival; and names of persons 
acting as agents for the applicant. The Service uses the information 
collected via the form to ensure the specimens were legally acquired 
will be transported through U.S. ports that can legally authorize the 
transport, the transport will be temporary, as required by statute, and 
the specimens will be used for purposes authorized by statute.
    (8) Form 3-202-11, ``Take of Depredating Eagles & Eagles that Pose 
a Risk to Human or Eagle Health or Safety--Annual Report''--Permittees 
use this form to report the outcome of their action involving take of 
depredating eagles or eagles that pose a risk to human or eagle health 
or safety. The form collects the following information: species, 
location, date of take, number of eagles, method of take, and final 
disposition. The Service uses the information reported via the form to 
ascertain that the planned take was implemented, track how much 
authorized take occurred in the eagle management unit and local 
population area, and verify the disposition of any eagles taken under 
the permit.
    (9) Form 3-202-13, ``Eagle Exhibition--Annual Report''--Permittees 
use this form to report activities conducted under an Eagle Exhibition 
Permit for both Live and Dead Eagles. The form collects the following 
information: list of eagles and eagle specimens held under the permit 
during the reporting year, and, for each, the date acquired or disposed 
of; from whom acquired or to whom transferred; total number of programs 
each eagle was used in, or if statically displayed, such as in a museum 
setting, the number of days the facility was open to the public. The 
Service uses the information reported through this form to verify that 
eagles held under the permit are used for conservation education.
    (10) Form 3-202-14, ``Native American Tribal Eagle Aviary--Annual 
Report''--Permittees use this form to report activities conducted under 
a Native American Eagle Aviary Permit. The form collects the following 
information: a list of eagles held under the permit during the 
reporting year, and, for each, the date acquired or disposed of; from 
whom acquired or to whom transferred; or other disposition. The Service 
uses the information collected via the form to track the live eagles 
held by federally recognized Tribes for spiritual and cultural 
practices.
    (11) Form 3-1552 ``Native American Tribal Eagle Retention''--A 
Federal Eagle Remains Tribal Use permit authorizes a federally 
recognized Tribe to acquire, possess, and distribute to Tribal members 
whole eagle remains found by a Tribal member or employee on the Tribe's 
Tribal land for Indian religious use. The applicant must be a federally 
recognized Tribal entity under the Federally Recognized Tribal List Act 
of 1994, 25 U.S.C. 479a-1, 108 Stat. 4791 (1994). In addition to the 
standardized information required by 50 CFR 13.12, the form also 
collects the following information: name of the Tribe; name and contact 
information for the Tribal leader and primary contact person; whether 
the Tribe has already discovered an eagle to hold under the permit; and 
if different than what's listed for the primary contact, the address of 
the physical location where records will be kept. The Service uses the 
information collected via the form to identify which Tribe is applying 
for the permit and informs the Service as to whether the Tribe is 
applying before or subsequent to finding the first eagle they wish to 
retain, allowing the Service to choose the appropriate course of 
action.
    (12) Form 3-1591, ``Tribal Eagle Retention--Acquisition Form''--
This form provides the Service information needed to track the chain of 
custody of eagle remains and ensure the Tribe takes possession of them 
as authorized under the permit. The first part of the form (completed 
by a Service Office of Law Enforcement (OLE) Officer) collects: 
species; sex; age class of eagle; date and location discovered; date 
the information was reported to track eagle mortalities; date the 
remains were transferred to the Tribe; name and contact information for 
the Tribe; and OLE officer name and contact information. The second 
part of the form (competed by the Tribe) collects: permit number; date 
the Tribe took possession of the eagle; and Principal Tribal Officer's 
name, title, and contact information.
    (13) Form 3-2480, ``Eagle Recovery Tag''--The form is used to track 
dead eagles as they move through the process of laboratory examination 
to determine cause of death and are sent to the NER for distribution to 
Native Americans for use in religious ceremonies. In addition to the 
standardized information required by 50 CFR 13.12, the form also 
collects the following information: U.S. Geological Survey band data; 
unique ID number assigned; mortality date; species, age, and sex of the 
eagle; date recovered; name of person(s) who found and recovered the 
eagle; and names and contact information of persons who received the 
eagle throughout the chain of custody. The Service uses the information 
collected to maintain chain of custody for law enforcement and 
scientific purposes.
    (14) Monitoring Requirements--Most permits that authorize take of 
eagles or eagle nests require monitoring. We do not require monitoring 
for intentional take such as when Native American Tribes take an eagle 
as part of a religious ceremony or when falconers trap golden eagles 
that are depredating on livestock. A fundamental purpose of monitoring 
under take permits is to track levels of take for population 
management. For disturbance permits, monitoring also provides 
information about whether the permitted activity actually disturbed 
eagles, allowing the Service to better understand when these types of 
permits may not be needed. In addition to tracking take at population 
management scales, the Service uses data from monitoring lethal take 
permits to adjust authorized take levels, compensatory mitigation 
requirements, and conservation measures as spelled out under the terms 
of the permit. With regard to wind industry permits, these data also 
enable the Service to improve future fatality estimates through 
enhanced understanding of exposure and collision.
    (15) Required Notifications--Most permits that authorize take or 
possession of eagles require a timely notification to the Service by 
email or phone when an eagle possessed under a possession permit or 
taken under a permit to take eagles dies or is found dead. These 
fatalities are later recorded in reports submitted to the Service as 
described above. The timely notifications allow the Service to better 
track take and possession levels, and to ensure eagle remains are sent 
to either a forensics lab or the NER. Incidental take permittees are 
also required to notify the Service via email or phone if a threatened 
or endangered species is found in the vicinity of the activity for 
which take is permitted. There is no notification requirement for that 
beyond reporting each occurrence where take is discovered to have 
occurred. The Service tracks whether the take level is exceeded or is 
likely to be exceeded.
    (16) Permit Reviews--We propose to remove the regulatory 
requirement for long-term specific permits to mandate an administrative 
check-in with the Service at least every 5 years during the permit 
tenure (termed 5-year Permit Review, above). The Service introduced 
these mandatory 5-year permit reviews

[[Page 59622]]

as part of the 2016 Eagle Rule to ensure that the Service had an 
opportunity to ask for and review all existing data related to a long-
term activity's impacts on eagles. It was intended that the Service 
would use this information to, if necessary, re-calculate fatality 
estimates and authorization levels, and amend permit conditions such as 
mitigation requirements. However, over the last several years the 
Service has heard complaints from wind companies, and comments were 
submitted in response to the ANPR, that these scheduled reviews 
introduced uncertainty into project planning and funding and has 
discouraged participating or influenced the permit tenure that is 
requested by the applicant.
    Removal of these administrative check-ins would increase certainty 
for applicants that are concerned about amendments to permit conditions 
every 5 years, and is intended to increase participating in eagle take 
permitting. The Service instead intends to hold the amount of take 
authorized under a long-term specific permit constant unless the 
permittee requests an amendment, or unless the Service determines that 
an amendment is necessary and required under 50 CFR 22.200(e). Such a 
change replaces scheduled check-ins and potential amendments resulting 
from those check-ins with unscheduled check-ins and amendments that the 
permittee or Service could initiate at any time as situations arise 
that may warrant them.
    (17) Recordkeeping Requirements--As required by 50 CFR 13.46, 
permittees must keep records of the activity as it relates to eagles 
and any data gathered through surveys and monitoring, to include 
records associated with the required internal incident reporting system 
for bald eagle and golden eagle remains found and the disposition of 
the remains. This information retained by permittees is described above 
under reporting requirements.
    (18) Amendments--Amendments to a permit may be requested by the 
permittee, or the Service may amend a permit for just cause upon a 
written finding of necessity. Amendments comprise changes to the permit 
authorization or conditions. Such changes may include an increase or 
decrease in the authorized take or possession of eagles, proposed 
adjustment of permit conditions, or changes to the activity involving 
eagles. 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/or 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 timeframe. The permittee applies for amendments to the permit by 
submitting a description of the modified activity and the changed 
conditions affecting eagles. Substantive amendments incur a processing 
fee. A permittee is not required to pay a processing fee for minor 
changes, such as the legal individual or business name or mailing 
address of the permittee. A permittee is required to notify the issuing 
office within 10 calendar days of such change.
    (19) Transfers--In general, permits issued under 50 CFR part 22 are 
not transferable. However, when authorized, permits issued under Sec.  
22.80 may be transferred by the transferee providing written assurances 
of sufficient funding of the conservation measures and commitment to 
carry out the terms and conditions of the permit.
    Copies of the draft forms are available to the public by submitting 
a request to the Service Information Collection Clearance Officer using 
one of the methods identified in ADDRESSES.
    Title of Collection: Eagle Permits and Fees, 50 CFR parts 10, 13, 
and 22.
    OMB Control Number: 1018-0167
    Form Numbers: FWS Forms 3-200-14, 3-200-15a, 3-200-16, 3-200-18, 3-
200-71, 3-200-72, 3-200-77, 3-200-78, 3-200-82, 3-202-11, 3-202-13, 3-
202-14, 3-202-15, 3-202-16, 3-1552, 3-1591, 3-2480, 3-202-91 (New), and 
3-202-92 (New).
    Type of Review: Revision of a currently approved collection.
    Respondents/Affected Public: Individuals, businesses, and State/
local/Tribal governments. We expect the majority of applicants seeking 
long-term permits will be in the energy production and electrical 
distribution business.
    Total Estimated Number of Annual Respondents: 8,469.
    Total Estimated Number of Annual Responses: 8,469.
    Estimated Completion Time per Response: Varies from 15 minutes to 
200 hours, depending on activity.
    Total Estimated Number of Annual Burden Hours: 38,991.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion for applications; annually or 
on occasion for reports.
    Total Estimated Annual Non-hour Burden Cost: $7,249,980 (primarily 
associated with application processing and administrative fees).
    Send your written comments and suggestions on this information 
collection by the date indicated in DATES to the Service Information 
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or 
by email to [email protected]. Please reference OMB Control Number 
1018-0167 in the subject line of your comments.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We are evaluating the environmental impacts of the changes to the 
regulations and are accepting public comments on a draft environmental 
review document, as described above in DATES and ADDRESSES.

Endangered and Threatened Species

    Section 7 of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531-43), requires Federal agencies to ``ensure that any action 
authorized, funded, or carried out . . . is not likely to jeopardize 
the continued existence of any endangered species or threatened species 
or result in the destruction or adverse modification of [critical] 
habitat'' (16 U.S.C. 1536(a)(2)). Before issuance of the final 
regulations and final environmental assessment (EA), the Service will 
comply with provisions of the Endangered Species Act to ensure that the 
rulemaking has no effect on or is not likely to jeopardize the 
continued existence of any species designated as endangered or 
threatened or modify or destroy its critical habitat and is consistent 
with conservation programs for those species.

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 the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same

[[Page 59623]]

controls as Federal public lands, to remain sensitive to Indian 
culture, and to make information available to Tribes. We continue to 
seek information from Tribes to determine whether the proposed rule 
will have effects on Tribes or Tribal lands, sacred sites, or resources 
may be affected by the proposed changes in this rule. Federally 
recognized Native American Tribes can request government-to-government 
consultation via letter submitted at any time during this rulemaking 
process. The Service conducted a Tribal webinar on September 22, 2021, 
during the ANPR public comment period as well as prior to publication 
of this proposed rule. SevenTribal representatives provided written 
comments.

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

    E.O. 13211 requires agencies to prepare statements of energy 
effects when undertaking certain actions. This proposed rule is a 
significant regulatory action under E.O. 12866; however, it will not 
significantly affect energy supplies, distribution, or use. The 
proposed permitting process streamlines permitting for wind energy and 
power distribution; therefore, the rule is intended to ease 
administrative burden on energy development and will not impact it 
negatively. Therefore, this action is not a significant energy action 
and no statement of energy effects is required.

Signing Authority

    On September 23, 2022, Shannon Estenoz, Assistant Secretary for 
Fish and Wildlife and Parks, approved this action for publication. On 
September 23, 2022, Shannon Estenoz also authorized the undersigned to 
sign this document electronically and submit it to the Office of the 
Federal Register for publication as an official document of the 
Department of the Interior.

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.

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend parts 13 and 22 of 
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 citation 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. Revise Sec.  13.5 to read as follows:


Sec.  13.5  Information collection requirements.

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this part and assigned 
OMB Control Number 1018-0022, 1018-0070, 1018-0092, 1018-0093, or 1018-
0167 (unless otherwise indicated). Federal agencies may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
Direct comments regarding the burden estimates or any other aspect of 
the information collection to the Service's Information Collection 
Clearance Officer at the address provided at 50 CFR 2.1(b).
0
3. Amend Sec.  13.11 by:
0
a. Revising paragraphs (d)(2) and (d)(3)(i); and
0
b. In the table in paragraph (d)(4):
0
i. Removing the 15 entries under ``Bald and Golden Eagle Protection 
Act'' and adding 19 entries in their place; and
0
ii. Revising footnote 1.
    The revisions and additions read as follows:


Sec.  13.11  Application procedures.

* * * * *
    (d) * * *
    (2) If regulations in this subchapter require more than one type of 
permit for an activity and the permits are issued by the same office, 
the issuing office may issue one consolidated permit authorizing take 
caused by the activity in accordance with Sec.  13.1. You may submit a 
single application in such cases, provided that the single application 
contains all the information required by the separate applications for 
each activity. Where more than one activity is consolidated into one 
permit, the issuing office will charge the highest single fee for the 
activity for which take is permitted. Administration fees are not 
waived.
    (3) * * *
    (i) We will not charge a permit application fee to any Federal, 
Tribal, State, or local government agency or to any individual or 
institution acting on behalf of such agency, except that administration 
fees for permits issued under subpart E of part 22 of this subchapter 
will not be waived. Except as otherwise authorized or waived, if you 
fail to submit evidence of such status with your application, we will 
require the submission of all processing fees prior to the acceptance 
of the application for processing.
* * * * *
    (4) * * *

----------------------------------------------------------------------------------------------------------------
                                                                   Permit
           Type of permit                   CFR citation         application     Administration    Amendment fee
                                                                     fee            fee \1\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                      Bald and Golden Eagle Protection Act
Eagle Scientific Collecting.........  50 CFR part 22.........             100
Eagle Exhibition....................  50 CFR part 22.........              75
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.
Specific Permit Eagle Disturbance     50 CFR part 22.........           2,500  .................             500
 Take--Commercial.
Specific Permit Eagle Disturbance     50 CFR part 22.........             500  .................             150
 Take--Noncommercial.
Specific Permit Eagle Incidental      50 CFR part 22.........          28,000              8,000             500
 Take.
Transfer of a Subpart E Eagle Permit  50 CFR part 22.........           1,000
Specific Permit Eagle Nest Take--     50 CFR part 22.........           2,500  .................             500
 Single nest, Commercial.

[[Page 59624]]

 
Specific Permit Eagle Nest Take--     50 CFR part 22.........             500  .................             150
 Single nest, Noncommercial.
Specific Permit Eagle Nest Take--     50 CFR part 22.........           5,000  .................             500
 Multiple nests.
General Permit--1 year..............  50 CFR part 22.........             100
General Permit--5 years.............  50 CFR part 22.........             500
General Permit--Power lines           50 CFR part 22.........             500    5,000 per State
 incidental take.
General Permit--Wind incidental take  50 CFR part 22.........             500  2,625 per turbine             500
Eagle Take--Exempted under ESA......  50 CFR part 22.........  ..............             No fee
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ An additional Administration Fee will be assessed at the time of application.

* * * * *
0
4. Amend Sec.  13.12 by:
0
a. Revising paragraph (a)(1)(ii); and
0
b. Removing the 8 entries in table 1 to paragraph (b) under ``Eagle 
permits'' and adding in their place 10 entries.
    The revisions and additions read as follows:


Sec.  13.12  General information requirements on applications for 
permits.

    (a) * * *
    (1) * * *
    (ii) If the applicant is an individual, the date of birth, 
occupation, and any business, agency, organizational, or institutional 
affiliation associated with the wildlife or plants to be covered by the 
license or permit; or
* * * * *
    (b) * * *

                        Table 1 to Paragraph (b)
------------------------------------------------------------------------
                  Type of permit                           Section
------------------------------------------------------------------------
 
                              * * * * * * *
Eagle permits:
    Scientific or exhibition......................                 22.50
    Indian religious use..........................                 22.60
    Falconry purposes.............................                 22.70
    Depredation and protection of health and                      22.100
     safety.......................................
    Permits for incidental take of eagles.........      22.200 or 22.210
    Permits for incidental take of eagles by power      22.200 or 22.210
     lines........................................
    Permits for disturbance take of eagles........      22.200 or 22.210
    Permits for nest take of eagle................      22.200 or 22.210
    Permits for golden eagle nest take from                       22.325
     resource development.........................
    Permits for bald eagle take exempted under the                22.400
     Endangered Species Act.......................
------------------------------------------------------------------------

Sec.  13.24  [Amended]

0
5. Amend Sec.  13.24 in the introductory text of paragraph (c) by 
removing ``Sec.  22.80 of this subchapter B,'' and adding in its place 
``part 22, subpart E, of this subchapter''.


Sec.  13.25  [Amended]

0
6. Amend Sec.  13.25 in paragraphs (b) introductory text and (f) by 
removing ``Sec.  22.80 of this subchapter B'' wherever it appears and 
adding in its place ``part 22, subpart E, of this subchapter''.

PART 22--EAGLE PERMITS

0
7. The authority citation for part 22 continues to read as follows:

    Authority: 16 U.S.C. 668-668d; 703-712; 1531-1544.
0
8. Amend Sec.  22.6 by:
0
a. Revising the definitions of ``Eagle management unit (EMU)'' and 
``Eagle nest'';
0
b. Adding in alphabetical order a definition for ``General permit'':
0
c. Revising the definition of ``In-use nest''; and
0
d. Adding in alphabetic order a definition of ``Incidental take''.
    The revisions and additions read as follows:


Sec.  22.6  Definitions.

* * * * *
    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. The Atlantic EMU is CT, DE, FL, GA, MA, MD, ME, NH, NJ, NY, NC, 
PA, RI, SC, VA, VT, and WV. The Mississippi EMU is AL, AR, IL, IN, IA, 
KY, LA, MI, MN, MO, MS, OH, TN, and WI. The Central EMU is KS, ND, NE, 
NM, OK, SD, and TX; portions of CO, NM, and WY east of the Continental 
Divide; and portions of MT east of Hill, Chouteau, Cascade, Meagher, 
and Park Counties. The Pacific EMU is AK, AZ, CA, ID, NV, OR, UT, WA; 
portions of CO, NM, and WY west of the Continental Divide; and in MT 
Hill, Chouteau, Cascade, Meagher, and Park Counties and all counties 
west of those counties. An EMU may be further divided between north and 
south along the 40th Parallel.
    Eagle nest means any assemblage of materials built, maintained, or 
used by bald eagles or golden eagles for the purpose of reproduction. 
An eagle nest remains an eagle nest until it becomes so diminished or 
the nest substrate upon which it is built fails, such that the nest is 
no longer usable and is not likely to become usable to eagles, as 
determined by a Federal, State, or Tribal eagle biologist.
* * * * *
    General permit means a permit that is issued to an individual or 
entity with nationwide or regional standard conditions for a category 
or categories of

[[Page 59625]]

activities that are substantially similar in nature.
* * * * *
    In-use nest means a bald or golden eagle nest characterized by the 
presence of one or more viable eggs or dependent young in the nest, or, 
for golden eagles only, adult eagles on the nest in the past 10 days 
during the breeding season.
    Incidental take means take that results from, but is not the 
purpose of, an activity.
* * * * *
0
9. Amend Sec.  22.12 by adding paragraph (c) to read as follows:


Sec.  22.12  Illegal activities.

* * * * *
    (c) Application for a permit does not release you from liability 
for any take that occurs prior to issuance of, or outside the terms of, 
a permit.
0
10. Revise the heading of subpart C to read as follows:

Subpart C--Eagle Possession Permit Provisions


Sec.  22.80  [Removed and Reserved]

0
11. Remove and reserve Sec.  22.80.


Sec.  22.85  [Removed and Reserved]

0
12. Remove and reserve Sec.  22.85.
0
13. Add subpart E, consisting of Sec. Sec.  22.200 through 22.300, to 
read as follows:

Subpart E--Take of Eagles for Other Interests

Sec.
22.200 Specific permits.
22.210 General permits.
22.215 Conditions of permits.
22.220 Compensatory mitigation.
22.250 Permits for incidental take of eagles by wind energy 
projects.
22.260 Permits for incidental take of eagles by power lines.
22.280 Permits for disturbance take of eagles.
22.300 Permits for take of eagle nests.


Sec.  22.200   Specific permits.

    (a) Purpose. Specific permits authorize the take of bald eagles or 
golden eagles for other interests that do not meet general permit 
eligibility requirements or for entities that do not wish to obtain a 
general permit if applicable.
    (b) Eligibility. To qualify for a specific permit, you must meet 
the following eligibility requirements. If conducting an activity 
identified in Sec.  22.250, Sec.  22.260, Sec.  22.280, or Sec.  
22.300, you must also meet any eligibility requirements identified in 
the relevant section.
    (1) Permits are issued to the individual or entity conducting the 
activity, such as the owner or operator of a project.
    (2) Upon receipt of a specific permit application, the Service may 
direct you to apply for a general permit if applicable. If so, the 
Service will provide a letter of authorization to keep in your records 
stating the conditions under which the activity qualifies for a general 
permit.
    (c) How to apply for a specific permit. (1) Submit a completed 
application form as specified in Sec.  22.250(a), Sec.  22.260(a), 
Sec.  22.280(a), or Sec.  22.300(a), as applicable, or Form 3-200-71 if 
the activity does not correspond with a particular permit type. Submit 
forms to the Regional Director of the region where you will conduct 
your activity. If your activity spans multiple regions, submit your 
application to the region of your U.S. mailing address. The Service 
will assign the appropriate administering region. You can find the 
current contact information for Regional Directors in Sec.  2.2 of 
subchapter A of this chapter.
    (2) Your application must include:
    (i) A description of the activity that will cause the take to be 
authorized, including the location, seasonality, and duration of the 
activity.
    (A) If applying under Sec.  22.250 for wind energy projects, that 
description must include the number of turbines, rotor diameter, and 
location coordinates of each turbine.
    (B) If applying under Sec.  22.260 for power lines, include the 
State and county(ies) of coverage, total miles of transmission and 
distribution line, number of distribution poles, and the number of 
distribution poles that are not electrocution-safe at time of 
application.
    (C) If applying under Sec.  22.280 or Sec.  22.300, include the 
location of known nest(s) and nest status (such as in-use or 
alternate).
    (ii) Justification of why there is no practicable alternative to 
take that would protect the interest to be served.
    (iii) An eagle impacts assessment, including the species affected, 
an estimate of the number of eagles using the project area, projected 
take, and a description of methods used to make the required findings. 
If the Service has officially issued or endorsed, through rulemaking 
procedures, survey, modeling, take estimation, or other standards for 
the activity that will take eagles, you must follow them and include in 
your application all the information thereby obtained, unless the 
Service waives this requirement for your application.
    (iv) Implemented and proposed steps to avoid, minimize, compensate 
for, and monitor impacts on eagles.
    (v) Alternative actions considered and the reasons why such 
alternatives are not practicable.
    (vi) Any supplemental information necessary for the Service to make 
an adequate determination on the application (see Sec.  13.21 of this 
subchapter).
    (vii) Payment of the required application and administration fee(s) 
(see Sec.  13.11(d)(4) of this subchapter), and, if required, proposed 
compensatory mitigation or eagle credits to be obtained from a Service-
approved or in-lieu fee program. All compensatory mitigation must 
comply with the provisions of Sec.  22.220.
    (3) The applicant must be the entity conducting the activity. The 
applicant is responsible for compliance with the permit and must have 
the authority to implement the required beneficial practices. 
Applicants are most commonly the owner or manager of the entity 
conducting the activity. Contractors or consultants may assist in 
completing applications and/or conducting work as a subpermittee but 
may not be a permit holder.
    (d) Issuance criteria. Upon receiving a complete application, the 
Regional Director will decide whether to issue a permit based on the 
general criteria of Sec.  13.21 of this subchapter and whether the 
application meets the following requirements:
    (1) The applicant is eligible for a specific permit. However:
    (i) The Service may deny applications for specific permits if we 
determine the project does not require a permit.
    (ii) The Service may grant a letter of authorization to apply for a 
general permit if the Service determines the project is consistent with 
fatality estimates for general permits even though it does not 
otherwise meet general-permit eligibility criteria. This paragraph 
(d)(1)(ii) applies only to existing projects applying for incidental 
take of eagles by wind energy projects (Sec.  22.250). You must submit 
a specific permit application and request a determination for general 
permit eligibility. Your specific permit application fee may be 
refunded (Sec.  13.11(d)(1) of this subchapter); however, the 
administration fee will not be refunded.
    (2) The take:
    (i) Is necessary to protect a legitimate interest in a particular 
locality; and
    (ii) Results from, but is not the purpose of, the activity.
    (3) The amount of take the Service authorizes under the permit is 
compatible with the preservation of the bald eagle and the golden 
eagle, including consideration of the effects of

[[Page 59626]]

other permitted take and other factors affecting bald eagle and golden 
eagle populations.
    (4) The applicant has proposed avoidance and minimization measures 
to reduce the take to the maximum degree practicable relative to the 
magnitude of the activity's impacts to eagles. These measures must meet 
or exceed the requirements of the general permit (Sec.  22.210), except 
where not practicable.
    (5) The applicant has proposed to either: implement compensatory 
mitigation measures that comply with the standards in Sec.  22.220; or 
secure required eagle credits from a Service-approved conservation bank 
or in-lieu fee program.
    (6) The applicant has proposed monitoring plans that are sufficient 
to determine the effects on eagle(s) of the proposed activity.
    (7) The proposed reporting is sufficient for the Service to 
determine the effects on eagle(s).
    (8) Any additional factors that may be relevant to our decision 
whether to issue the permit.
    (e) Modifications to your permit. An amendment fee is required to 
make substantive amendments to the permit during the permit tenure (see 
Sec.  13.11(d)(5) of this subchapter). The Service will also charge an 
administration fee for permittee- or Service-initiated amendments (see 
Sec.  13.23 of this subchapter) that the Service determines to be 
significant, such as modifications that result in recalculating 
estimated take, reevaluating compensatory mitigation requirements, 
evaluating impacts of a new project size or arrangement, or requiring 
additional environmental review.
    (f) Tenure. The tenure of each permit will be designated on the 
face of the permit. Specific permits may be valid for a maximum of 30 
years. Permit tenure may be less, as restricted by the provisions for 
specific activities set forth in Sec.  22.250, Sec.  22.260, Sec.  
22.280, or Sec.  22.300 or as appropriate to the duration and nature of 
the proposed activity, including mitigation requirements.


Sec.  22.210   General permits.

    (a) Purpose. General permits authorize the take of bald eagles or 
golden eagles for other interests that meet the eligibility 
requirements for general permits set forth in Sec.  22.250, Sec.  
22.260, Sec.  22.280, or Sec.  22.300.
    (b) Eligibility. To qualify for a general permit, you must be 
conducting an activity identified in Sec.  22.250, Sec.  22.260, Sec.  
22.280, or Sec.  22.300 and meet any additional eligibility 
requirements identified in the relevant section.
    (1) Permits are issued to the individual or entity conducting the 
activity, such as the owner or operator of a project. The applicant is 
responsible for compliance with the permit and must have the authority 
to implement the required beneficial practices. Contractors or 
consultants may assist in completing applications and/or conducting 
work as a subpermittee but may not be a permit holder.
    (2) Even if you are otherwise eligible for a general permit, the 
Service may notify you that you must apply for a specific permit if:
    (i) The Service finds that the project does not comply with the 
requirements for a general permit; or
    (ii) For wind projects authorized under Sec.  22.250, four eagle 
mortalities of either species have been discovered at the project.
    (c) How to apply. (1) Register with the Service by submitting the 
appropriate application form specified in Sec.  22.250(a), Sec.  
22.260(a), Sec.  22.280(a), or Sec.  22.300(a), as applicable, to the 
Regional Director of the region in which your activity will be 
conducted. If your activity spans multiple regions, submit your 
application to the region of your U.S. mailing address. The Service 
will assign the appropriate administering region. You can find the 
current contact information for Regional Directors in Sec.  2.2 of 
subchapter A of this chapter.
    (2) Your application must include:
    (i) A description of the activity that will cause the take to be 
authorized, including the location, seasonality, and duration of the 
activity.
    (A) If applying under Sec.  22.250 for wind energy projects, that 
description must include the number of turbines, rotor diameter, and 
location coordinates of each turbine.
    (B) If applying under Sec.  22.260 for power lines, include the 
State and county(ies) of coverage, total miles of transmission and 
distribution line, number of distribution poles, and the number of 
distribution poles that are not electrocution-safe at time of 
application.
    (C) If applying under Sec.  22.280 or Sec.  22.300, include the 
location of known nest(s) and nest status (such as in-use or 
alternate).
    (ii) Justification of why there is no practicable alternative to 
take that would protect the interest to be served.
    (iii) Duration of the permit requested.
    (iv) Certification that the activity complies with all other 
applicable Federal, State, Tribal, and local laws. This includes 
certifying that the activity for which take is to be authorized by the 
general permit either does not affect a property that is listed, or is 
eligible for listing, in the National Register of Historic Places as 
maintained by the Secretary of the Interior; or that the applicant has 
obtained, and is in compliance with, a written agreement with the 
relevant State Historic Preservation Officer (SHPO) or Tribal Historic 
Preservation Officer (THPO) that outlines all measures the applicant 
will undertake to mitigate or prevent adverse effects to the historic 
property.
    (v) Payment of required application and administration fee(s) (see 
Sec.  13.11(d)(4) of this subchapter).
    (vi) A certification that the applicant agrees to acquire eagle 
credits, if required, from a Service-approved in-lieu fee program 
within 90 days of the effective date of the permit.
    (d) Issuance criteria. Upon registering by submitting an 
application under paragraph (c) of this section, the Service will 
automatically issue a general permit to authorize the take requested in 
the application. In registering, you must certify that you meet the 
general criteria of Sec.  13.21 of this subchapter and the following 
issuance criteria:
    (1) You are conducting an activity that qualifies for a general 
permit.
    (2) The take:
    (i) Is necessary to protect a legitimate interest in a particular 
locality; and
    (ii) Results from, but is not the purpose of, the activity.
    (3) The activity is consistent with the specific requirements 
applicable to that activity as described in Sec.  22.250, Sec.  22.260, 
Sec.  22.280, or Sec.  22.300.
    (4) You will implement the general permit conditions applicable to 
your activity, including required avoidance, minimization, monitoring, 
and reporting requirements.
    (5) You will implement the required eagle credits from a Service-
approved conservation bank or in-lieu fee program within 90 days of the 
effective date of your permit.
    (e) Program continuation. The Service will regularly evaluate 
whether the take of bald eagles and golden eagles under general permits 
remains compatible with the preservation of eagles. If the Service 
finds, through the best available information, that the general permit 
program is not compatible with the preservation of bald eagles or 
golden eagles, the Service may suspend issuing general permits in all 
or in part after publishing a notice in the Federal Register. The 
Service may reinstate issuance of general permits after publishing 
another notice in the Federal Register or by promulgating additional 
rulemaking. If the Service suspends general permitting, take currently 
authorized under a general permit

[[Page 59627]]

remains authorized until expiration unless you are notified otherwise.
    (f) Tenure. The tenure of each permit will be designated on the 
face of the permit. General permits may be valid for a maximum of 5 
years. Permit tenure may be less, as restricted by the provisions in 
Sec.  22.250, Sec.  22.260, Sec.  22.280, or Sec.  22.300 as 
applicable.


Sec.  22.215   Conditions of permits.

    (a) In addition to meeting the conditions set forth in part 13 of 
this subchapter, you must comply with the terms of your permit. Your 
authorization is subject to the following additional permit terms and 
conditions:
    (1) Your permit will specify the type of take authorized (i.e., 
incidental take, disturbance take, or nest take) and may specify the 
amount, location, or other restrictions on the take authorized. You are 
not authorized for any additional types of take not specified on the 
face of your permit.
    (2) Your permit will require implementation of avoidance, 
minimization, monitoring, and adaptive management measures consistent 
with the relevant regulations in this subpart.
    (3) For permits that authorize the incidental take of eagles, you 
are required to implement methods for discovering eagles at your 
project.
    (i) Onsite personnel, such as staff, contractors, and volunteers, 
must be trained how to visually scan for eagle remains and must conduct 
visual scans when onsite.
    (ii) You must promptly notify the Service of any eagle(s) found 
injured or dead at the activity site, regardless of whether the injury 
or death resulted from your activity. Your notification must include 
species, condition, discovery date, location, and other relevant 
information.
    (iii) Dispose of eagles in accordance with Service instructions, 
which may include shipping eagles to the National Eagle Repository or 
other designated facility.
    (4) You must comply with all Service reporting requirements in this 
subpart. You must annually report incidental take and disturbance take 
using Form 3-202-15. You must report nest take using Form 3-202-16.
    (5) You must comply with all compensatory mitigation requirements 
in accordance with Sec.  22.220, including any additional requirements 
contained in Sec.  22.250, Sec.  22.260, Sec.  22.280, or Sec.  22.300 
if applicable.
    (6) You must keep records of all activities conducted under this 
permit, including any subpermittee activities carried out under the 
authority of this permit (see Sec.  13.46 of this subchapter). Your 
records must include an internal, discovered-eagle reporting system for 
bald eagle and golden eagle remains found at the site of the activity.
    (7) By accepting this permit, you are authorizing the Service to 
inspect the location and records relating to the activity (see Sec.  
13.21(e) of this subchapter). The Service may require you to 
participate in the Service's program-wide monitoring, such as providing 
access to Service staff or contractors. The Service will provide 
reasonable notice for requests to access sites and negotiate with the 
permittee about practicable and appropriate access conditions to 
protect human health and safety and address physical, logistical, or 
legal constraints.
    (8) You are responsible for ensuring that the activity for which 
take is authorized complies with all Federal, Tribal, State, and local 
laws and regulations applicable to eagles.
    (9) You may designate subpermittees to conduct some or all of your 
permitted activities. Subpermittees must be at least 18 years of age. 
You must designate subpermittees in writing, including the name and 
contact information of the individual or entity and the date(s), 
location(s), and activitie(s) for which take is authorized. 
Subpermittees must have a copy of their subpermittee designation and 
the permit when conducting activities and display them upon request 
whenever exercising the permit authority. You are responsible for 
ensuring that your subpermittees are qualified to perform the work and 
comply with the terms of your permit. You are also responsible for 
maintaining current records of designated subpermittees. As the 
permittee, you are ultimately legally responsible for compliance with 
the terms and conditions of this permit, and that responsibility may 
not be delegated.
    (b) The Service may amend, suspend, or revoke a permit issued under 
this subpart if new information indicates that revised permit 
conditions are necessary, or that suspension or revocation is 
necessary, to safeguard local or regional eagle populations. The 
provision in this paragraph (b) 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 subchapter.
    (c) Notwithstanding the provisions of Sec.  13.26 of this 
subchapter, 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.


Sec.  22.220  Compensatory mitigation.

    (a) Your permit conditions may include a requirement to compensate 
for the take of eagles, in which case that requirement will be 
specified on the face of your permit.
    (1) Any permit authorizing take that would exceed the applicable 
EMU take limit will require compensatory mitigation. 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 by 
increasing the eagle population of the affected species by an equal or 
greater amount.
    (2) A permit may require compensatory mitigation when the Service 
determines from the best available information that the persistence of 
the local area population of an eagle species in the project area may 
not be maintained.
    (3) Compensatory mitigation will be calculated to account for both 
the project's impacts and the population status of the species for 
which incidental take is requested.
    (b) All required compensatory mitigation actions must:
    (1) Be contingent upon application of avoidance and minimization 
measures to reduce the take to the maximum degree practicable relative 
to the magnitude of the project's impacts on eagles.
    (2) Be sited within:
    (i) The same EMU where the permitted take will occur; or
    (ii) Another EMU, but only if the Service has reliable data showing 
that the population affected by the take includes individuals that are 
reasonably likely to use that EMU during part of their seasonal 
migration.
    (3) Be sited within the same local area population where the 
permitted take will occur if required by the Service due to concern 
regarding the persistence of a particular local area population.
    (4) Use the best available science in formulating, crediting, and 
monitoring the long-term effectiveness of mitigation measures.
    (5) Be additional to and improve upon the baseline conditions for 
the affected eagle species in a manner that is demonstrably new and 
would not have occurred without the compensatory mitigation.
    (6) Be durable and, at a minimum, maintain its intended purpose for 
as long as the impacts of the authorized take persist.
    (7) Include mechanisms to account for and address uncertainty and 
risk of

[[Page 59628]]

failure of a compensatory mitigation measure, including financial 
assurances.
    (c) Compensatory mitigation must be approved by the Service and may 
include conservation banks, in-lieu fee programs, or permittee-
responsible mitigation as mitigation providers.
    (1) General permittees meet this requirement by obtaining required 
credits from a Service-approved third-party mitigation provider. 
Specific permittees can meet this requirement by obtaining required 
credits from a Service-approved third-party mitigation provider or 
meeting the requirements to be a permittee-responsible mitigation 
provider as described in paragraph (c)(2) of this section. Third-party 
mitigation providers, such as in-lieu fee programs and conservation 
banks, obtain Service approval by meeting the requirements to be a 
mitigation provider as described in paragraph (c)(2) of this section.
    (2) To obtain approval as a permittee-responsible mitigation 
provider, providers must submit a mitigation plan to the Service 
sufficient to demonstrate that the standards set forth in paragraph (b) 
of this section can be met. At a minimum, this must include a 
description of the mitigation, the benefit to eagles, the location(s) 
where projects will be implemented, the EMU and local area population 
served, the number of credits provided, and an explanation of the 
rationale for this determination. The Service must approve the 
mitigation plan prior to implementation.


Sec.  22.250  Permits for incidental take of eagles by wind energy 
projects.

    (a) Purpose. The regulations in this section authorize the 
incidental killing or injury of bald eagles and golden eagles 
associated with the operation of wind-energy projects. Apply using Form 
3-200-71.
    (b) Definitions. The following terms used in this section have the 
meanings set forth in this paragraph (b):
    Existing project. Infrastructure that was operational prior to 
[EFFECTIVE DATE OF THE FINAL RULE], as well as infrastructure that was 
sufficiently far along in the planning process on that date that 
complying with new requirements would be impracticable, including if an 
irreversible or irretrievable commitment of resources has been made 
(e.g., site preparation was already underway or infrastructure was 
partially constructed).
    Relative abundance. The average number of eagles of each species 
expected to be seen by a qualified person who observes for eagles for 
one hour at the optimal time of the day for detecting the species, and 
who travels no more than one kilometer during the observation session. 
Relative abundance values determined for a project must be based on 
publicly available eBird relative abundance products (eBird is an 
online database of bird distribution and abundance. Cornell Lab of 
Ornithology, Ithaca, New York. Available at: https://science.ebird.org/en/status-and-trends/faq#mean-relative-abundance). You may use the 
relative abundance map produced by the Service (available at: https://fws.gov/) in lieu of calculating relative abundance values yourself.
    (c) Eligibility for a general permit. To qualify for a general 
permit, you must meet the requirements of Sec.  22.210, not be denied 
eligibility per paragraph (d)(3) of this section, be located in the 
contiguous 48 States, and:
    (1) To be eligible, all turbines associated with a project must be 
located in areas characterized by seasonal relative abundance values 
that are less than the relative abundance values for the date range for 
each species listed in paragraphs (c)(1)(i) and (ii) of this section. 
Additionally, golden eagle nests must be at least 2 miles and bald 
eagle nests must be at least 660 feet from any turbines.
    (i) Relative abundance value thresholds for bald eagles throughout 
the year are as follows:

                     Table 1 to Paragraph (c)(1)(i)
------------------------------------------------------------------------
                                                            Bald eagle
                       Date range                            relative
                                                             abundance
------------------------------------------------------------------------
1. Feb 22-Apr 11........................................           1.272
2. Apr 12-Sep 6.........................................           0.812
3. Sep 7-Dec 13.........................................           0.973
4. Dec 14-Feb 21........................................           1.151
Average of periods 1 and 3..............................           1.018
------------------------------------------------------------------------

    (ii) Relative abundance value thresholds for golden eagles 
throughout the year are as follows:

                     Table 2 to Paragraph (c)(1)(ii)
------------------------------------------------------------------------
                                                           Golden eagle
                       Date range                            relative
                                                             abundance
------------------------------------------------------------------------
1. Feb 15-May 16........................................           0.206
2. May 17-Sep 27........................................           0.118
3. Sep 28-Dec 13........................................           0.168
4. Dec 14-Feb 14........................................           0.229
Average of periods 1 and 3..............................           0.145
------------------------------------------------------------------------

    (2) For existing projects only, if you have received a letter of 
authorization from the Service (see Sec.  22.200(d)(1)(ii)), the 
project is eligible for a general permit.
    (d) Discovered eagle provisions for general permits. You must 
implement procedures to discover eagles in accordance with the 
provisions set forth in Sec.  22.215(a)(3) and as required by your 
permit conditions. In following those protocols:
    (1) You must include in your annual report the discovery of any 
eagle found.
    (2) If you discover the take of three eagles of any one species 
during the tenure of the general permit, you must notify the Service in 
writing within 2 weeks of discovering the take of a third eagle and 
implement an adaptive management measure(s). Your notification must 
include the reporting data required in your permit conditions, your 
adaptive management plan, and a description and justification of which 
adaptive management approaches you will be implementing.
    (3) If you discover the take of four eagles of any one species 
during the tenure of the general permit, you must notify the Service in 
writing within 2 weeks of discovering the take of the fourth eagle. 
Your notification must include the reporting data required in your 
permit conditions, your adaptive management plan, and a description and 
justification of which adaptive management approaches you will be 
implementing. The project may continue to be authorized to incidentally 
take eagles through the term of the existing general permit but will be 
denied eligibility for future general permits for incidental take. You 
may apply for a specific permit for incidental take at that project. 
You may request reconsideration of this denial by following the review 
procedures set forth at Sec.  13.29 of this subchapter, including 
providing the information required in Sec.  13.29(b)(3).
    (4) If the Service conducts monitoring at a wind project, eagles 
discovered by the Service may be attributed to the wind project. To 
adjust for potential differences in detection rate for Service-
monitoring, the number of eagles attributed to the project as 
``discovered'' in accordance with this paragraph (d) will be adjusted 
based on the Service-monitoring detection rate.
    (e) Eligibility for a wind energy specific permit. To qualify for a 
specific permit, you must meet the requirements of Sec.  22.200. In 
determining whether to issue a permit, the Service will review the 
application materials provided, including the eagle impacts assessment. 
The Service will use the best available data to estimate the take of 
eagles that will result from the proposed activity.
    (f) Wind energy permit conditions. The following conditions apply 
to all general and specific permits. Specific permits may include 
additional project-specific permit conditions.
    (1) Develop an adaptive management plan, including circumstances 
that

[[Page 59629]]

trigger implementation and management measures to be considered.
    (2) Remove anthropogenic hazardous attractants to eagles and avoid 
creating new anthropogenic eagle attractants throughout the project, 
including resources that could attract foraging, roosting, and/or 
nesting behavior.
    (3) Minimize collision and electrocution risks in the project, 
including collisions with turbines, vehicles, towers, and power lines.
    (4) Comply with all of the regulations and permit conditions in 
part 21 of this subchapter, including any provisions specific to 
authorizing incidental take of migratory birds.
    (5) Submit required reports to the Service.
    (6) Pay the required application and administration fee(s) (see 
Sec.  13.11(d)(4) of this subchapter).
    (7) Implement required compensatory mitigation. You must keep 
records to document compliance with this requirement and provide them 
to the Service with your annual report.
    (i) For wind energy specific permits, you must submit a plan to the 
Service in accordance with Sec.  22.200(c) and implement the 
compensatory-mitigation requirements on the face of your permit.
    (ii) For wind energy general permits, you must obtain eagle credits 
from a Service-approved conservation bank or in-lieu fee program based 
on the hazardous volume of the project in cubic-kilometers. The 
hazardous volume of a project is calculated as the number of turbines 
multiplied by 0.200[pi](d/2)[caret]2 where d is the diameter of the 
blades in kilometers. You must obtain eagle credits at the following 
rates: Atlantic/Mississippi EMUs: 6.56 eagles/km\3\, Central EMU: 7.88 
eagles/km\3\, and Pacific EMU: 11.48 eagles/km\3\.
    (g) Tenure of permits. General permits are valid for 5 years from 
the date of registration. Specific permits may be valid for up to 30 
years.


Sec.  22.260   Permits for incidental take of eagles by power lines.

    (a) Purpose. The regulations in this section authorize the 
incidental killing or injury of bald eagles and golden eagles 
associated with power line activities. Apply using Form 3-200-92.
    (b) Definitions. The following terms used in this section have the 
meanings set forth in this paragraph (b):
    Collision response strategy. A plan that describes the steps the 
permittee will take to identify, assess, and respond to eagle 
collisions with power-line infrastructure. The assessment should 
include the species, habitat, daily and seasonal migration patterns, 
eagle concentration areas, and other local factors that might be 
contributing to eagle collisions. The response options should consider 
eagle collisions in the engineering design (e.g., burying the line, 
rerouting the line, or modifying the line to reduce the number of 
wires), when modifying habitat, and when marking the power line.
    Eagle-shooting response strategy. A plan to respond to eagle-
shooting events where one or more eagles are discovered near power-line 
infrastructure and the cause of death is shooting. The plan must 
outline the steps to identify when eagle shooting occurs, options for 
response, and implementation of the response.
    Electrocution-safe. A power-pole configuration that minimizes eagle 
electrocution risk by using a design that provides sufficient 
separation between phases and between phases and grounds to accommodate 
the wrist-to-wrist or head-to-foot distance of an eagle or by covering 
exposed parts with insulators to physically separate electricity from 
eagles. If insulators are used, they must be in good condition and 
regularly maintained. For conversions from an above-ground line to a 
buried line, the buried portion is considered ``electrocution-safe.''
    Proactive retrofit strategy. A plan to convert existing 
infrastructure to electrocution-safe infrastructure. The proactive 
retrofit strategy must include information on how poles are identified 
as not electrocution-safe, how poles are prioritized for retrofit, what 
retrofit designs are used, and how the strategy is to be implemented. 
The proactive retrofit strategy must identify annual targets for the 
number of poles to be retrofitted.
    Reactive retrofit strategy. A plan to respond to incidents where 
eagles are electrocuted or killed. The reactive retrofit strategy must 
include information on how eagle electrocutions are detected and 
identified. Determining which poles to retrofit must be based on the 
risk to eagles and not on other factors, such as convenience or cost. 
The pole that caused the electrocution must be retrofitted, unless the 
pole is already electrocution-safe. A total of 11 poles or a half-mile 
segment must be retrofitted, whichever is less. The typical pole 
selection will be the pole that caused the electrocution and five poles 
in each direction. However, if retrofitting other poles in the circuit 
provides more benefit to eagles, those poles may be retrofitted by 
prioritizing the least-safe poles closest to the electrocution event. 
Poles outside of the circuit that caused the electrocution may be 
counted towards this retrofit requirement only if all poles in the 
circuit are already electrocution-safe.
    (c) Eligibility for a general permit for incidental take. To 
qualify for a general permit, you must meet the requirements of Sec.  
22.210.
    (d) General permit conditions for power lines. Project permittees 
must:
    (1) Ensure that all new construction and reconstruction of poles is 
electrocution-safe, as limited by the need to ensure human health and 
safety.
    (2) Implement a reactive retrofit strategy following all 
electrocutions of eagles.
    (3) Implement a proactive retrofit strategy to convert all existing 
infrastructure to electrocution-safe. You must convert one-tenth of 
infrastructure that is not electrocution-safe as of the effective date 
of the general permit to electrocution-safe during the duration of the 
permit. If you renew your general permit, the same number of poles must 
be retrofit, such that all poles are retrofit within 50 years or by the 
expiration of the tenth, 5-year general permit.
    (4) Implement an eagle collision response strategy.
    (5) For new construction and reconstruction, incorporate 
information on eagles (population status of the species) into siting 
and design considerations as practicable, such as siting power lines a 
safe distance from nests, foraging areas, and roosts, subject to human 
health and safety, and/or significant adverse effects to biological, 
cultural, or historical resources.
    (6) Implement an eagle-shooting response strategy.
    (7) Comply with all of the regulations and permit conditions of 
part 21 of this subchapter, including any provisions specific to 
authorizing incidental take of migratory birds.
    (8) Train personnel to scan for eagle remains when onsite and 
implement internal reporting and recordkeeping procedures.
    (9) Submit required reports to the Service using Form 3-202-15.
    (10) Pay the required application and administration fee as set 
forth in Sec.  13.11(d)(4) of this subchapter.
    (e) Eligibility for a specific permit for incidental take. To 
qualify for a specific permit, you must meet the requirements of Sec.  
22.200.
    (f) Tenure of permits. Power line general permits are valid for 5 
years. Specific permits may be valid for up to 30 years.


Sec.  22.280   Permits for disturbance take of eagles.

    (a) Purpose. The regulations in this section authorize the 
incidental take of bald eagles or golden eagles by

[[Page 59630]]

disturbance, as defined in Sec.  22.6. Purposeful disturbance of nests 
is not authorized under this section. Apply using Form 3-200-91.
    (b) Eligibility for a general permit for disturbance. To qualify 
for a general permit, you must meet the requirements of Sec.  22.210, 
and your activities must comply with the provisions set forth in 
paragraphs (b)(1) through (8) of this section. Activities occurring 
farther than the distances specified do not require a permit because 
they are unlikely to cause disturbance. The following activities are 
eligible for a general permit:
    (1) Building construction and maintenance within 660 feet of an in-
use bald eagle nest or within 330 feet of any bald eagle nest.
    (2) Linear infrastructure construction and maintenance (e.g., 
roads, rail, trails, power lines, and other utilities) within 660 feet 
of an in-use bald eagle nest or within 330 feet of any bald eagle nest.
    (3) Alteration of shorelines and water bodies (e.g., shorelines, 
wetlands, docks, moorings, marinas, and water impoundment) within 660 
feet of an in-use bald eagle nest or within 330 feet of any bald eagle 
nest.
    (4) Alteration of vegetation (e.g., mowing, timber operations, and 
forestry practices) within 660 feet of an in-use bald eagle nest or 
within 330 feet of any bald eagle nest.
    (5) Motorized recreation (e.g., snowmobiles, motorized watercraft, 
etc.) within 330 feet of an in-use bald eagle nest.
    (6) Nonmotorized recreation (e.g., hiking, camping, fishing, 
hunting, canoeing, etc.) within 330 feet of an in-use bald eagle nest.
    (7) Aircraft operation (e.g., helicopters and fixed-wing aircraft) 
within 1,000 feet of an in-use bald eagle nest.
    (8) Loud, intermittent noises (e.g., blasting) within one-half-mile 
of an in-use bald eagle nest, where the noise is intermittent or 
otherwise not present when the nest is initiated. Noise that is present 
prior to nest initiation and sufficiently consistent that eagles 
demonstrate tolerance to the activity does not require a permit.
    (c) Eligibility for a specific permit for disturbance. To qualify 
for a specific permit, you must meet the requirements of Sec.  22.200. 
You may apply for a specific permit if your activity may result in 
incidental disturbance of a golden eagle nest, incidental disturbance 
of a bald eagle nest for an activity not specified in paragraph (b) of 
this section, or disturbance to a foraging area.
    (d) Disturbance permit conditions. (1) Implement measures to avoid 
and minimize nest disturbance, including disturbance due to noise from 
human activities, visibility of human activities, proximity to nest, 
habitat alteration, and indirect stressors.
    (2) Avoid activities that may negatively affect the nesting 
substrate, such as the survivability of the nest tree.
    (3) Implement monitoring of in-use nests that is sufficient to 
determine whether nestlings have fledged from the nest and submit this 
information on your annual report.
    (e) Reporting. You must submit an annual report using Form 3-202-
15. The annual report is due within 30 days of the expiration of your 
permit or prior to requesting renewal of your permit, whichever is 
first.
    (f) Tenure of permits. General permits for disturbance issued under 
the regulations in this section are valid for a maximum of 1 year. The 
tenure of specific permits for disturbance is set forth on the face of 
the permit and may not exceed 5 years.


Sec.  22.300   Permits for take of eagle nests.

    (a) Purpose. The regulations in this section authorize the take of 
a bald eagle nest or a golden eagle nest, including relocation, 
removal, and otherwise temporarily or permanently preventing eagles 
from using the nest structure. Apply using Form 3-200-72.
    (b) Definitions. The following terms used in this section have the 
meanings set forth in this paragraph (b):
    Nest take for emergency. Take of an in-use or alternate eagle 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.
    Nest take for health and safety. Take of an in-use eagle nest prior 
to egg-laying or an alternate eagle nest, when the removal is necessary 
to ensure public health and safety.
    Nest take for human-engineered structure. Take of an in-use eagle 
nest prior to egg-laying or an alternate eagle nest 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.
    Nest take for species protection. Take of an in-use eagle nest 
prior to egg-laying or an alternate eagle nest, when the removal is 
necessary to protect a species federally protected under the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531-1544) and included on 
the List of Endangered and Threatened Wildlife (at Sec.  17.11 of this 
subchapter).
    Other purposes. Take of an alternate eagle 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.
    (c) Eligibility for a general permit for nest take. To qualify for 
a general permit, you must meet the requirements of Sec.  22.210. 
General permits are available for bald eagle nest take for emergency, 
health and safety, or a human-engineered structure, or, if located in 
Alaska, bald eagle nest take for other purposes. General permits are 
not available for take of golden eagle nests. General permits authorize 
bald eagle nest removal from the nesting substrate at the location 
requested and the location of any subsequent nesting attempts by the 
eagle pair within one-half-mile of the location requested for the 
duration of the permit. Take of an additional eagle nest(s) more than 
one-half-mile away requires an additional permit(s) if the subsequent 
nest(s) re-create the emergency, safety, or functional hazard of the 
original nest. The general permit application will require supporting 
documentation for certain types of requests, such as an arborist report 
in the case of hazard-tree removal.
    (d) Eligibility for a specific permit for nest take. To qualify for 
a specific permit, you must meet the requirements of Sec.  22.200. You 
may apply for a specific permit if you are requesting take of a golden 
eagle nest or requesting take of a bald eagle nest for species 
protection or other purposes. As part of your specific permit 
application, you may be required to provide supporting documentation, 
such as an arborist report in the case of hazard-tree removal.
    (e) Permits for species protection. If you are applying for a 
specific permit for nest take for species protection:
    (1) You must apply as the Federal, State, or Tribal agency 
responsible for implementing actions for the protection of the species 
of concern.
    (2) You must include documentation that:
    (i) Describes relevant management efforts to protect the species of 
concern.
    (ii) Identifies how eagles are a limiting factor to survival of the 
species using the best available scientific information and data. 
Include a description of the mechanism of that threat.
    (iii) Explains how take of eagle nest(s) is likely to have a 
positive outcome on recovery for the species.
    (f) Permit conditions for nest take. Permit conditions may include 
requirements to:

[[Page 59631]]

    (1) Adjust timing of your activity to minimize the effects of nest 
take.
    (2) Obstruct nest(s) or nest substrate.
    (3) Minimize renesting that would cause the same emergency, safety, 
or functional hazard.
    (4) Relocate the nest or provide suitable nesting substrate within 
the same territory.
    (5) Remove chicks and/or eggs from an in-use nest for immediate 
transport to a foster nest, rehabilitation facility, or as otherwise 
directed by the Service.
    (6) Monitor in-use nests that are relocated with nestlings or eggs 
present or foster nests to ensure adults are tending to nestlings or 
eggs.
    (7) Monitor the area near the nest removal for one or more seasons 
to determine the effect on eagles.
    (8) Submission of an annual report using Form 3-202-16.
    (g) Tenure of permits. General permits issued under the regulations 
in this section are valid until the start of the next breeding season, 
not to exceed 1 year. The tenure of specific permits is set forth on 
the face of the permit and may not exceed 5 years.


Sec.  22.75  [Redesignated as Sec.  22.325]

0
14. Redesignate Sec.  22.75 as Sec.  22.325.
0
15. Newly redesignated Sec.  22.325 is amended by:
0
a. Revising the section heading; and
0
b. In the introductory text, removing the three sentences following the 
first sentence.
    The revision reads as follows:


Sec.  22.325  Permits for golden eagle nest take from resource 
development.

* * * * *


Sec.  22.90  [Redesignated as Sec.  22.400]

0
16. Redesignate Sec.  22.90 as Sec.  22.400.

Maureen D. Foster,
Chief of Staff, Office of the Assistant Secretary for Fish and Wildlife 
and Parks.
[FR Doc. 2022-21025 Filed 9-29-22; 8:45 am]
BILLING CODE 4333-15-P