Because of conflicts between preservation of golden eagle nests and resource development or recovery operations, particularly surface coal mining activities in the western States, Congress amended the Eagle Protection Act to authorize the Secretary of the Interior to issue regulations that permit the taking of golden eagle nests found on the site of those operations under certain circumstances. Under that authority, the Service amends its regulations under the Eagle Protection Act to permit the taking (i.e., collection, molestation, disturbance, or destruction) of golden eagle nests during resource development or recovery operations when the nests are inactive if the taking is compatible with the preservation of the area nesting population of golden eagles. Little or no long-term impact on area nesting populations of golden eagles is expected as a result of this action.
RULES and REGULATIONS
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
Permits To Take Golden Eagle Nests
Thursday, December 29, 1983
*57295 AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: Because of conflicts between preservation of golden eagle nests and resource development or recovery operations, particularly surface coal mining activities in the western States, Congress amended the Eagle Protection Act to authorize the Secretary of the Interior to issue regulations that permit the taking of golden eagle nests found on the site of those operations under certain circumstances. Under that authority, the Service amends its regulations under the Eagle Protection Act to permit the taking (i.e., collection, molestation, disturbance, or destruction) of golden eagle nests during resource development or recovery operations when the nests are inactive if the taking is compatible with the preservation of the area nesting population of golden eagles. Little or no long-term impact on area nesting populations of golden eagles is expected as a result of this action.
EFFECTIVE DATE: January 30, 1984.
FOR FURTHER INFORMATION CONTACT: John T. Webb, Branch of Investigations, Division of Law Enforcement, Fish and Wildlife Service, U.S. Department of the Interior, P.O. Box 28006, Washington, D.C. 20005, telephone: (202) 343-9242.
A notice of proposed rulemaking was published in the Federal Register on January 3, 1980 (45 FR 809), which invited comments for 60 days ending March 3, 1980. After a draft environmental assessment was prepared in conjunction with the proposed rule to comply with the National Environmental Policy Act of 1969, the comment period was reopened on October 9, 1981 (46 FR 49925), for 30 more days ending on November 9, 1981. Comments were received from individuals, businesses, government agencies, and environmental groups. The following summarizes the comments by topic and the Service's response to those comments, including any changes made in the proposed rule as a result.
Summary and Analysis of Comments
1. Scope and applicability of the rule
Many comments recognized the need for the rule and supported its basic principle: resource development or recovery operations are legitimate and appropriate activities entitled to limited relief from the prohibitions of the Eagle Protection Act, but the Service must remain committed to the preservation of *57296 the golden eagle. From that starting point the comments on the proposal diverged. Some found too little relief offered, others found too little emphasis on preservation.
The Service looked at the language of the 1978 amendment and the congressional intent underlying its passage when the proposal was drafted. The 1978 amendment, which amended section 2 of the Eagle Protection Act (16 U.S.C. 668a), reads as follows:
Provided further, That the Secretary of the Interior, pursuant to such regulations as he may prescribe, may permit the taking of golden eagle nests which interfere with resource development or recovery operations. Sec. 8, Pub. L. 95-616, 92 Stat. 3114 (16 U.S.C. 668a).
Beyond the language of the amendment, little guidance was offered by Congress. But in view of the exhaustive and careful enumeration of prohibited acts elsewhere in § 668a of the Eagle Protection Act, the use of this precise terminology by Congress in the 1978 amendment was intentional. Therefore, the Service believes it correctly interpreted the amendment to apply only to golden eagles, and then only to the taking of golden eagle nests.
From the number of comments addressing the possible situations when a permit is needed to take golden eagle nests, it appears the Service needs to clarify the “taking” prohibition. The definition of “take” in section 4 of the Eagle Protection Act (16 U.S.C. 668c) includes “collect, molest, or disturb.” In the context of this rule, these terms prohibit removal, destruction, or some other act that physically affects a golden eagle nest. That is, a nest is not “taken” during a resource development or recovery operation until it is removed, destroyed, or physically damaged or disturbed. But the very same operation that does not take a nest may result in a prohibited taking of a golden eagle. Whether a particular act results in the taking of a golden eagle is not within the scope of this rule.
Several comments stated that the rule should limit the geographic area in which permits would be available to Montana, Wyoming, Colorado, and Utah, four States where there are both healthy golden eagle populations and extensive surface coal mining operations. When read in the context of the Service's proposed definition of “resource development or recovery operation,” others saw a broad, nationwide, open-ended permit system (a “generic” permit as one comment called it). Other comments recommended that the Service prescribe limits on the types of resource development or recovery operations eligible for a permit.
The major portion of golden eagle nest-resource development or recovery conflicts do occur in the coal mining areas of Montana, Wyoming, Colorado, and Utah. This region has a high resident population of golden eagles that nest on existing coal leases or lands with a high potential for recovery of strippable coal. The service has adequate breeding population data for most of the energy impact areas in the western U.S. In Wyoming, where intensive sampling has been conducted, the breeding population is estimated at 3,000 pairs (an average of one pair per 33 square miles). On coal resource study areas, golden eagle densities have been as high as one breeding pair per 12 square miles.
Golden eagle nest-resource development or recovery conflicts also occur in association with such operations as logging; oil and gas exploration; and construction of dams, roads, pipelines and electric transmission or distribution lines. Compared to development of western coal reserves, however, these operations are less commonly associated with such conflicts due to either the restricted nature of the activity or the lower density of eagles found within the development area.
After reviewing the legislative history of the 1978 amendment, particularly the Senate report on the amendment (Sen. Rep. No. 95-1175, 95th Cong. 2nd Sess. 6-7 (1978), the Service has not found any Congressional intent to limit the permit to the suggested four-State area or narrow the types of resource development or recovery operations eligible for a permit. The legislative history provides examples which illustrate, but do not exhaust, the situations creating the need for a permit. As before, Congress was quite careful in its choice of words, preferring the term “resource development or recovery operations” rather than a less inclusive one.
Comments from Weyerhauser Company and Georgia-Pacific Corporation challenged the Service's authority to regulate the taking of golden eagle nests on non-Federal lands. Weyerhauser Company stated, “without clear statutory language, or at least clear legislative intent, Federal statutes should not be interpreted as requiring Federal permits for development of non-Federal land. We are not aware of any legislative history associated with the (Eagle Protection Act) . . . suggesting that development of non-Federal lands would be regulated. . . .”
As the Supreme Court noted in Andrus v. Allard, 444 U.S. 51 (1979), the Eagle Protection Act is a conservation statute containing prohibitions designed to prevent the destruction of bald and golden eagles. Exceptions to the general prohibitions of the Act are explicit and carefully circumscribed. Among the broad proscriptive provisions the Eagle Protection Act enumerates to achieve this goal is one that prohibits the taking of golden eagle nests. The 1978 amendment provides the Service with the authority to permit the taking of golden eagle nests in limited circumstances. What this final rule provides is a mechanism for applying conditions on the grant of a privilege to a permittee. It enables the Service to perform its statutory mandate while an operator engages in an otherwise prohibited activity. The development of non-Federal lands is only incidentally regulated and only when a permit to take a golden eagle nest is required.
In summary, under this rule: (1) No permit is needed by an operator to conduct a resource development or recovery operation in the vicinity of an inactive nest, as that term is defined by the rule and discussed below, as long as the nest is not removed, destroyed, or physically molested or disturbed; (2) no permit may be issued to an operator by the Service under 50 CFR 22.25 to take either golden eagles or their eggs; (3) a permit to take a golden eagle nest when the nest is inactive does not authorize the permittee to take either golden eagles or their eggs; and (4) whether an operator has unlawfully taken golden eagles or their eggs during an operation will be decided by the Service on a case-by-case basis, as the Service has done in the past.
The Service proposed a framework for issuing permits to take golden eagle nests that sought to distinguish between “active” and “inactive” nests. The Service proposed to define an “active nest” to mean one that “(a) is known to have been used by nesting golden eagles in at least 1 of the 3 preceding years; or (b) is in such condition that prior use by golden eagles can be verified, and little or no repair will be required for its subsequent use by golden eagles for nesting purposes. No definition of “inactive nest” was included.
Even though 2 types of nests were distinguished, the Service proposed to permit the taking of either type, but only if the particular nest was not under construction or occupied and the taking was compatible with the preservation of the regional population of golden eagles. *57297 The restriction against taking any nest under construction or occupied prevented the Service from authorizing the possible taking of one or more golden eagles for purposes not permitted under the Eagle Protection Act (16 U.S.C. 668a). Because the Act (16 U.S.C. 668a) also requires an investigation to be conducted before a permit is issued to determine whether the taking is “compatible with the preservation of the . . . golden eagle,” the proposal focused on the impact the taking would have on the regional population of golden eagles, to account for geographic differences in the total golden eagle population and to enable the Service to issue a permit tailored to the needs of a particular regional population.
The comments revealed confusion over these definitions, most notably, the definition of “active nest.” For one thing, it was argued that the definition departed from the common meaning of that term.
The final rule now defines the following terms: “area nesting population,” “golden eagle nest,” “inactive nest,” “nesting attempt,” “person,” and “resource development or recovery.” These definitions should overcome any confusion caused by the definitions used in the proposal or caused by terms that were left undefined.
The term “inactive nest” is defined to mean “a golden eagle nest that is not currently used by golden eagles as determined by the absence of any adult, egg, or dependent young at the nest during the 10 days before the nest is taken.” Any golden eagle nest is a candidate for a permit. But unlike the proposal, all golden eagle nests are seen as nests at which nesting attempts may occur. Cliffs, rock outcrops, and trees are used as nest sites by golden eagles. Many nest sites may be used by successive generations. Golden eagles have shown a propensity to construct a number of alternate nests in any one locale. Some may be used for nesting at varying intervals; some may be irregularly visited and maintained. Frequently, 3 or more of these alternate or satellite nests are constructed by a single pair of golden eagles. Although alternate nest sites may be selected because of early nesting failure, generally nesting attempts only occur at one site per year.
The definition of “inactive nest,” which replaces the proposed definition for “active nest,” identifies almost the same golden eagle nests that are eligible for a permit. That is, under the proposal, any “active nest” could be taken, except one that was under construction or occupied. Under the final rule, only an “inactive nest” may be taken, and by definition it must not be currently used by golden eagles.
The term “area nesting population” replaces the term “regional population.” An area nesting population is “the number of pairs of golden eagles known to have made a nesting attempt during the preceding 12 months within a 10-mile radius of a golden eagle nest.” The area nesting population is calculated with reference to the golden eagle nest proposed to be taken. Therefore, no two area nesting populations are identical.
A “nesting attempt” is “any activity by golden eagles involving egg-laying and incubation as determined by the presence of an egg attended by an adult, an adult in incubation posture, or other evidence indicating recent use of a golden eagle nest for incubation of eggs or rearing of young.”
The Service, under the final rule, will consider the impact of a resource development or recovery operation on the area nesting population of golden eagles before a permit is issued. Within a 10-mile radius of a golden eagle nest proposed to be taken, an area of approximately 314 square miles, it is economically feasible to determine breeding population levels using available methods. The survey area is believed adequate for determining whether a representative portion of the breeding population exists in the vicinity of a resource development or recovery operation. Nesting densities of golden eagles most commonly range from 25 to 35 square miles per breeding pair. Thus, 9 to 13 pairs would be expected to occupy an area within a 10-mile radius of a nest.
One comment suggested that the Service use the term “area of contiguous habitat” in place of the term “regional.” Such a substitution may create more confusion than it eliminates by requiring a decision to be made on the boundaries of the contiguous habitat. It also fails to recognize that concentrated populations may occur in adjacent habitats, causing inaccurate population estimates.
For clarity, the term “golden eagle nest” also is defined. The definition of “resource development or recovery” remains virtually unchanged, except for the addition of “power transmission lines” within the final definition.
One term, “mitigation measures,” remains undefined. Several mitigation measures are identified in the rule, but these are not meant to preclude any others suggested by an applicant or later developed by the Service. A more detailed discussion of mitigation measures appear directly below under the topic of permit administration.
3. Permit Administration
The final rule permits the taking (i.e., destruction, removal, or physical molestation or disturbance) of golden eagle nests which conflict with a resource development or recovery operation when the nests are inactive (as defined), if the taking is compatible with the preservation of the area nesting population of golden eagles (i.e., that number of pairs of golden eagles that made a nesting attempt during the preceding 12 months within a 10-mile radius of any nest taken under the permit).
Anyone planning a resource development or recovery operation is encouraged to involve the Service as early as possible to resolve any potential interference by golden eagle nests. However, any permits issued before the commencement of an operation are contingent upon the performance of the activities which require a permit. If a planned operation fails, the permit is no longer needed and becomes invalid. Again, even after a permit is issued a nest may only be taken when it is inactive.
Applicants are encouraged to suggest “mitigation measures,” which may include reclaiming disturbed land to enhance golden eagle nesting and foraging habitat, relocating in suitable habitat any golden eagle nest taken under permit, or establishing one or more artificial nest sites. The Service has identified only three types of mitigation measures, but more are possible. The goal of any mitigation measure is to encourage golden eagles to reoccupy the site of the resource development or recovery operation.
The final environmental assessment recommends restoration of disturbed lands for long-term reoccupancy by eagles as the principal mitigation measure. The relocation of nests taken under permit during the resource development or recovery operation or the establishment of artificial nest sites should be considered only when there is an expectation of long-term benefit to the area nesting population of golden eagles.
Closing access roads upon completion of an operation to minimize human contact, leaving a source of uncontaminated water, some reforestation, and removal of unnecessary power lines are additional reclamation actions which could be taken. In addition, other applicable laws may require an applicant to follow a particular manner of reclamation, which may also act as a mitigation measure.
*57298 Therefore, several variables will determine the terms and conditions, if any, imposed upon a permit by the Service: (1) The type of resource development or recovery operation, and (2) whether or not the operation is subject to pre-existing mitigation measures.
Some operations, such as surface mining and timbering, involve extensive surface disruption and a corresponding degradation of nesting and foraging habitat. Others, such as oil drilling, involve minor, isolated surface disruption and minimal degradation of habitat. However, mitigation measures are already required by other laws for most operations involving extensive surface disruption. The permanent program performance standards promulgated under the Surface Mining Control and Reclamation Act (SMCRA), which apply to almost all coal exploration and surface coal mining and reclamation operations, require mine operators to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and achieve enhancement of such resources where practicable. Restoration of land and water resources is ranked as a priority in reclamation planning. Further, Criterion Number 11 of the unsuitability criteria developed under Section 522 of SMCRA states:
(1) Criterion Number 11. A bald or golden eagle nest or site on Federal lands that is determined to be active and an appropriate buffer zone of land around the nest site shall be considered unsuitable. Consideration of availability of habitat for prey species and of terrain shall be included in the determination of buffer zones. Buffer zones shall be determined in consultation with the Fish and Wildlife Service.
(2) Exceptions. A lease may be issued if:
(i) It can be conditioned in such a way, either in manner or period of operation, that eagles will not be disturbed during breeding season; or
(ii) The surface management agency, with the concurrence of the Fish and Wildlife Service, determines that the golden eagle nest(s) will be moved.
(iii) Buffer zones may be decreased if the surface management agency determines that the active eagle nests will not be adversely affected. 43 CFR 3461.1(k).
By setting aside buffer zones, this criterion may eliminate the Service's concern for land reclamation as a mitigation measure when an inactive nest is taken in the vicinity of an active nest protected under this criterion.
Under the National Forest System administered by the Department of Agriculture, the management of fish and wildlife habitat to maintain viable populations of existing native vertebrate species is given extensive consideration.
As indicated above, most golden eagle nest-resource development or recovery operation conflicts are expected to occur on lands which are subject to land reclamation regulations imposed by other laws. For the most part, these requirements should facilitate the restoration of disturbed eagle nesting and foraging habitat. The Service's concern is the the applicant identify those mitigation measures already incorporated into the project plan.
The construction of artificial nest sites was proposed by the Service as one type of mitigation measure. Whether the establishment of such sites should be treated as a mitigation measure was a question specifically put to the public. The Service's position at that time was that an artificial nest site has the potential to be subsequently used by golden eagles and is therefore a mitigation measure, particularly when no other suitable nest sites exist.
Since the rule was proposed, the Service has conducted research on the effects of golden eagle nest manipulations. These have included nest relocation, construction of artificial nest sites and studies of the breeding biology of golden eagles to understand more fully factors of nest site attachment and the short and long-term effects of nest removal on golden eagle populations of varying sizes. A Research Information Bulletin published by the Service entitled “Resolving Conflicts Between Energy Development and Nesting Golden Eagles” (No. 82-28, August 1982), an interim report containing provisional data, summarized some of the results to date. This provisional data indicates that golden eagles will use relocated nest sites. Similar successes were detailed by several commenters. Of course, merely moving a nest may be of limited benefit if other factors necessary to the birds' well-being and normally found within the home range are absent.
Whether feasible mitigation measures compatible with the resource development or recovery operation are available to encourage golden eagles to reoccupy the resource development or recovery site is only one of a number of issuance criteria that must be addressed before a permit may be issued. Other factors are:
1. Whether the applicant can reasonably conduct the resource development or recovery operation in a manner that avoids taking any golden eagle nest:
2. The total number of inactive golden eagle nests proposed to be taken;
3. The size of the area nesting population of golden eagles;
4. Whether suitable nesting and foraging habitat unaffected by the resource development or recovery operation is available to the area nesting population of golden eagles to accommodate any golden eagles displaced by the resource development or recovery operation; and
5. Whether the area nesting population is widely dispersed or locally concentrated.
The comments concerning permit administration raised a number of issues. One from the Department of the Interior's Office of Surface Mining (OSM) requested the Service (FWS) to include a consultation requirement whenever a resource development or recovery operation is subject to the Surface Mining Control and Reclamation Act (SMCRA) because of a potential conflict between the permanent program regulations promulgated under the SMCRA and the possible inability of an operator to obtain a permit to take a golden eagle nest located on a highwall created by surface mining. The comment specifically noted:
The Surface Mining Act requires that all highwalls be eliminated, and the pertinent regulations require that reclamation be done contemporaneously with mining. 30 U.S.C. 1265(b)(3); 30 CFR 816.100. In addition, the regulations specify certain time requirements for the completion of backfilling and grading. 30 CFR 816.101. These time requirements obviously conflict with any prohibition against “taking” an eagle nest.
For the most part, the conflict between the FWS and OSM regulations can be resolved under a provision in 30 CFR 816.101 which allows for an extension of time if the coal operator demonstrates to the appropriate regulatory authority that additional time is necessary to complete the required backfilling and grading. (The Office of Surface Mining anticipates that a majority of the State programs will provide for a smiliar extension of time so most likely the same flexibility will be available.)
Of course, such a determination must be made on a case-by-case basis, but nonetheless there is room for flexibility so that an operator is not caught in the dilemma of trying to decide whether to destroy the eagle next or to disregard the reclamation requirements.
Presently, the extension of time provision appears to alleviate any conflict between the regulations. . . .
[But] OSM can forsee lengthy delays in reclamation work. The Office of Surface Mining proposes that FWS add a consultation requirement to 50 CFR 22.25(c). In other words, the FWS Regional Director conducting the permit approval investigation should at least consult with the appropriate OSM Regional Director on the matter before denying a permit.
*57299 The Service agrees with the need for consultation, but not with the need to place the consultation requirement in the regulations. Such a requirement is more appropriate for internal procedures needed to administer the permit. Already the Service has taken steps to:
1. Develop in-house procedures for handling requests, including consultation requirements with appropriate State and Federal officials. Service officials responsible for collecting and assessing the biological information required in decisionmaking will also be identified.
2. Assemble pertinent available data on golden eagles nesting density, such as nest locations and existing nests at which nesting attempts occurred, and organize this material for use by officials designated to issue permits. Priority is assigned to areas already being mined and those scheduled for leasing or development.
3. Develop a research/inventory program to provide solid data on which to base Service golden eagle management decisions. Accelerating leasing and development schedules make it essential that the Service undertake a major effort over the next two to three years, with the interim decisions available for updating operating plans on at least an annual basis.
4. Develop a golden eagle management plan to (a) provide an overview of the situation confronting management of the western populations of the golden eagle; (b) identify Service principles and goals regarding management of this species; (c) provide a comprehensive list of nationwide objectives for the species and identify problems confounding immediate attainment of these objectives; and (d) briefly outline potential Service strategy to implement management of the species.
One comment sought additional information on the criteria the Service will use to determine whether a permit is really necessary. In light of the Service's somewhat restrictive interpretation of the term “take” as it applies to nests, the instances when nests must be taken generally will occur during resource development or recovery operations involving extensive surface disruption. The applicant must demonstrate a need for the permit beyond mere convenience. Whether an applicant can reasonably conduct the resource development or recovery operation in a manner that avoids taking any golden eagle nest requires the Service to look at the cost and technical feasibility of alternatives while assessing the impact of the taking on the area nesting population if the taking is permitted.
As stated earlier, applicants are encouraged to contact the Service as soon as possible during a resource development or recovery operation when a permit may be needed to take a golden eagle nest. There are several reasons. One, the Service needs at least 30 days to process an application. Under extraordinary circumstances, a permit may be issued sooner, but the Service does not have the administrative capability to issue permits immediately, as one commenter requested. Two, applicants must provide the data used to calculate the area nesting population of golden eagles. During each 12-month period there is only a brief “window” when golden eagles can be observed making nesting attempts. Otherwise the Service must rely on other evidence of nesting attempts, such as earlier observations or the presence of certain material at a nest, to determine whether a nesting attempt occurred at a particular nest. If the applicant and Service cooperate, together they can make the necessary determination of the area nesting population and terminate the determination when sufficient data has been obtained. For some areas the Service already has accumulated most of the required data. A limited update is all that may be necessary. In areas where no data has been collected, information is available from the Service in order to plan population studies and conduct aerial transects.
One comment objected to limiting the duration of permits to 1 year because of the time it takes to plan a major operation. The Service agrees and has extended the tenure of permits to 2 years. The permits, of course, are renewable under 50 CFR 13.24. Any mitigation measures included in a permit as a condition must be completed before the expiration of the permit, unless the permit is renewed. When mitigation measures are included, the Service will describe them in enough detail to enable both the permittee and the Service to determine whether they have been satisfied.
One commenter wanted to know how the Service will resolve disputes. Two areas of potential conflict between an applicant and the Service may be administratively appealed by the applicant under 50 CFR 13.32. These new appeal procedures were published by the Service in the Federal Register on July 15, 1982 (47 FR 30786). Under these procedures, an applicant can appeal denial of a permit, or appeal the mitigation measures imposed by the Service when a permit is issued.
Two minor additional changes have been made. Permittees are required to notify the Service before a nest is taken, not after, so the Service can have a last minute opportunity to inspect the nest. Also, applicants are asked if they are willing to collect a nest, instead of destroy it in instances where the Service would authorize destruction, to enable members of the scientific community to have access to the nest for various scientific studies. In no case does a nest taken under permit become the property of the permittee.
Finally, as noted below, the Service has made a Finding of No Significant Impact under the National Environmental Policy Act of 1969 (NEPA) based upon an environmental assessment completed in conjunction with this final rule. Another environmental document is not required for each permit that is issued. Under section 1.4 of Appendix 1 to Chapter 6, Part 516 of the Departmental Manual (516 DM 6, App. 1.4), the issuance of these permits is categorically excluded from the NEPA process.
National Environmental Policy Act
An environmental assessment has been prepared in conjunction with this final rule by the Service's Office of Migratory Bird Management. It is on file in the Division of Law Enforcement, 1375 K Street, NW., Suite 300, Washington, D.C., and may be examined during regular business hours. Single copies are also available upon request by contacting the person identified above under the caption “FOR FURTHER INFORMATION CONTACT.” This assessment forms the basis for the decision that this final rule is not a major Federal action which would significantly affect the quality of the human environment within the meaning of section 102(2)(C) of the National Environmental Policy Act of 1969.
Paperwork Reduction Act
The information collection requirement contained in 50 CFR 22.25 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1018-0022.
Determinations of Effects
In accordance with Executive Order 12291 entitled “Federal Regulation,” the Department of the Interior has determined that this final rule is not major. Certain resource development or recovery operations in limited areas should become feasible where interference from golden eagle nests *57300 exists. No figures are available on the number of permits likely to be issued, but the permits will be free and relatively easy to secure. Any costs associated with the permit should be more than offset by the fact that an impediment has been removed from a resource development or recovery operation. This determination is discussed in more detail in a Determination of Effects prepared by the Service. A copy of that document may be obtained by contacting the person identified above under the caption “FOR FURTHER INFORMATION CONTACT.” Because this rule was proposed before January 1, 1981, the Regulatory Flexibility Act (Pub. L. 96-354) does not apply.
The primary author of this final rule is John T. Webb, Division of Law Enforcement, Fish and Wildlife Service.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports, Penalties, Reporting requirements, Wildlife.
50 CFR Part 22
Exports, Imports, Reporting requirements, Wildlife.
For the reasons set out in the preamble, Subchapter B, Chapter I of Title 50, Code of Federal Regulations is amended as follows:
PART 13—GENERAL PERMIT PROCEDURES
1. The authority citation for Part 13 reads as follows:
Authority: 18 U.S.C. 42; sec. 4, Pub. L. 97-79, 95 Stat. 1074 (16 U.S.C. 3373); sec. 7, Pub. L. 97-79, 95 Stat. 1078 (16 U.S.C. 3376); sec. 3, Pub. L. 65-186, 40 Stat. 755 (16 U.S.C. 704); sec. 3(h)(3), Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712; sec. 2, 54 Stat. 251, as amended by sec. 9, Pub. L. 95-616, 92 Stat. 3114 (16 U.S.C. 668a); sec. 102, 76 Stat. 73 (19 U.S.C. 1201, “Schedule 1, Part 15D, Headnote 2(d), Tariff Schedules of the United States”; sec. 9(d), Pub. L. 93-205, 87 Stat 893 (16 U.S.C 1538(d); sec. 6(a)(1), Pub. L. 96-159, 93 Stat 1228 (16 U.S.C 1537a); E.O. 11911, 41 FR 15683, 3 CFR, 1976 Comp., p. 112, sec. 101 Pub. L. 93-205, 87 Stat. 896, as amended by secs. 2 and 3, Pub. L. 94-359, 90 Stat. 3760; sec. 7, Pub. L. 96-359, 90 Stat. 911 and 912; sec. 5, Pub. L. 95-632, 92 Stat. 3760; sec. 7, Pub. L. 96-159, 93 Stat. 1230 (16 U.S.C 1539); sec. 11, Pub. L. 93-205, 87 Stat. 897, as amended by sec. 6(4), Pub. L. 95-632, 92 Stat. 3761 (16 U.S.C. 1540(b)(2)(f); sec. 13(d), 86 Stat. 905, amending 85 Stat. 480 (16 U.S.C. 742j-1); Title I sec. 112, Pub. L. 92-522, 86 Stat. 1042, as amended by Title II, sec. 201(e), Pub. L. 96-470, 94 Stat. 2241 (16 U.S.C. 1382); 65 Stat. 290 (31 U.S.C. 483(a)).
50 CFR § 13.12
§ 13.12 [Amended]
50 CFR § 13.12
2. Amended § 13.12(b) by adding the following entry in numerical order under “Eagle permits:”
* * * * *
--------------------------------------------Take of golden eagle nests ........... 22.25--------------------------------------------
* * * * *
PART 22—EAGLE PERMITS
3. The authority citation for Part 22 is revised to read as follows:
Authority: Sec. 2, Act of June 8, 1940, chapter 278, 54 Stat. 251; Pub. L. 87-844, 76 Stat. 1246; section 2, Pub. L. 92-535, 86 Stat. 1065; section 9, Pub. L. 95-616, 92 Stat. 3114 (16 U.S.C. 668a).
50 CFR § 22.3
§ 22.3 [Amended]
50 CFR § 22.3
4. Amend § 22.3 by adding the following definitions in alphabetical order:
“Area nesting population” means the number of pairs of golden eagles known to have a nesting attempt during the preceding 12 months within a 10-mile radius of a golden eagle nest.
“Golden eagle nest” means any readily identifiable structure built, maintained or occupied by golden eagles for propagation purposes.
“Inactive nest” means a golden eagle nest that is not currently used by golden eagles as determined by the absence of any adult, egg, or dependent young at the nest during the 10 days before the nest is taken.
“Nesting attempt” means any activity by golden eagles involving egg laying and incubation as determined by the presence of an egg attended by an adult, an adult in incubation posture, or other evidence indicating recent use of a golden eagle nest for incubation of eggs or rearing of young.
“Person” means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of any State or political subdivison of a State.
“Resource development or recovery” includes, but is not limited to, mining, timbering, extracting oil, natural gas and geothermal energy, construction of roads, dams, reservoirs, power plants, power transmission lines, and pipelines, as well as facilities and access routes essential to these operations, and reclamation following any of these operations.
50 CFR § 22.25
5. Add the following new § 22.25:
50 CFR § 22.25
§ 22.25 Permits to take golden eagle nests.
The Director may, upon receipt of an application and in accordance with the issuance criteria of this section, issue a permit authorizing any person to take golden eagle nests during a resource development or recovery operation when the nests are inactive, if the taking is compatible with the preservation of the area nesting population of golden eagles. The information collection requirements contained within this section have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance number 1018-0022. This information is being collected to provide information necessary to evaluate permit applications. This information will be used to review permit applications and make decisions, according to the criteria established in this section for the issuance or denial of such permits. The obligation to respond is required to obtain or retain a permit.
(a) Application procedure. Applications for permits to take golden eagle nests must be submitted to the appropriate Special Agent in Charge (see § 13.11(b) of this chapter). Applications are only accepted from persons engaged in a resource development or recovery operation, including the planning and permitting stages of an operation. Each application must contain the general information and certification required by § 13.12(a) of this chapter plus the following additional information:
(a)(1) A description of the resource development or recovery operation in which the applicant is engaged;
(a)(2) The number of golden eagle nests proposed to be taken;
(a)(3) A description of the property on which the taking is proposed, with reference made to its exact geographic location. An appropriately scaled map or plat must be included which delineates the area of the resource development or recovery operation and identifies the exact location of each golden eagle nest proposed to be taken. The map or plat must contain enough detail so that each golden eagle nest proposed to be taken can be readily located by the Service.
*57301 (a)(4) For each golden eagle nest proposed to be taken, the applicant must calculate the area nesting population of golden eagles and identify on an appropriately scaled map or plat the exact location of each golden eagle nest used to calculate the area nesting population unless the Service has sufficient data to independently calculate the area nesting population. The map or plat must contain enough details so that each golden eagle nest used to calculate the area nesting population can be readily located by the Service.
(a)(5) A description of each activity to be performed during the resource development or recovery operation which involves the taking of a golden eagle nest;
(a)(6) A statement with any supporting documents from ornithologists experienced with golden eagles or other qualified persons who have made on site inspections and can verify the applicant's calculation of the area nesting population;
(a)(7) The length of time for which the permit is requested, including the dates on which the proposed resource development or recovery operation is to begin and end;
(a)(8) A statement indicating the intended disposition of each nest proposed to be taken. Applicants should state whether they are willing to collect any nest for scientific or educational purposes; and
(a)(9) A statement indicating any proposed mitigation measures that are compatible with the resource development or recovery operation to encourage golden eagles to reoccupy the resource development or recovery site. Mitigation measures may include reclaiming disturbed land to enhance golden eagle nesting and foraging habitat, relocating in suitable habitat any inactive golden eagle nest taken, or establishing one or more nest sites. If the establishment of one or more nest sites is proposed, a description of the materials and methods to be used and the exact location of each artificial nest site must be included.
(b) Additional permit conditions. In addition to the general conditions set forth in Part 13 of this chapter, permits to take golden eagle nests are subject to the following additional conditions:
(b)(1) Only inactive golden eagle nests may be taken.
(b)(2) The permittee shall submit a report of activities conducted under the permit to the Director within ten (10) days following the permit's expiration;
(b)(3) The permittee shall notify the Director in writing at least 10 days but not more than 30 days before any golden eagle nest is taken;
(b)(4) The permittee shall comply with any mitigation measures determined by the Director to be feasible and compatible with the resource development or recovery operation; and
(b)(5) Any permit issued before the commencement of a resource development or recovery operation is invalid if the activity which required a permit is not performed.
(c) Issuance criteria. The Director shall conduct an investigation and not issue a permit to take any golden eagle nest unless such taking is compatible with the preservation of the area nesting population of golden eagles. In making such determination, the Director shall consider the following:
(c)(1) Whether the applicant can reasonably conduct the resource development or recovery operation in a manner that avoids taking any golden eagle nest;
(c)(2) The total number of golden eagle nests proposed to be taken;
(c)(3) The size of the area nesting population of golden eagles;
(c)(4) Whether suitable golden eagle nesting and foraging habitat unaffected by the resource development or recovery operation is available to the area nesting population of golden eagles to accommodate any golden eagles displaced by the resource development or recovery operation;
(c)(5) Whether feasible mitigation measures compatible with the resource development or recovery operation are available to encourage golden eagles to reoccupy the resource development or recovery site. Mitigation measures may include reclaiming disturbed land to enhance golden eagle nesting and foraging habitat, relocating in suitable habitat any golden eagle nest taken, or establishing one or more nest sites; and
(c)(6) Whether the area nesting population is widely dispersed or locally concentrated.
(d) Tenure of permits. The tenure of any permit to take golden eagle nests is 2 years from the date of issuance, unless a shorter period of time is prescribed on the face of the permit. Permits may be renewed in accordance with Part 13 of this chapter.
Dated: March 10, 1983.
G. Ray Arnett,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 83-34401 Filed 12-28-83; 8:45 am]
BILLING CODE 4310-55-M