[Federal Register: June 5, 2007 (Volume 72, Number 107)]
[Rules and Regulations]
[Page 31131-31140]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn07-12]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 13 and 22
Protection of Eagles and Authorizations Under the Bald and Golden Eagle
Protection Act for Take of Eagles; Final Rule and Proposed Rule
Protection of Eagles and National Bald Eagle Management Guidelines;
Notices
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 22
RIN 1018-AT94
Protection of Eagles; Definition of ``Disturb''
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (the Service), are
codifying a definition of ``disturb'' under the Bald and Golden Eagle
Protection Act (Eagle Act). Given that the Eagle Act's prohibition
against disturbance applies to both bald and golden eagles, the
definition will apply to golden eagles (Aquila chrysaetos) as well as
bald eagles (Haliaeetus leucocephalus).
If the bald eagle is delisted, the Eagle Act will be the primary
law protecting bald as well as golden eagles. The Eagle Act prohibits
unregulated take of bald and golden eagles and provides a statutory
definition of ``take'' that includes ``disturb.'' Although disturbing
eagles has been prohibited by the Eagle Act since the statute's
enactment in 1940, the meaning of ``disturb'' has not been explicitly
defined by the Service or by the courts. To define ``disturb,'' we
considered Congressional intent, the common meaning of the term as
applied to the conservation intent of the Eagle Act, and the working
definitions of ``disturb'' currently used by Federal and State agencies
to manage eagles. This definition of ``disturb'' will apply to eagles
in Alaska, where the bald eagle has never been listed under the ESA, as
well as eagles throughout the 48 contiguous States. (Eagles do not
occur in Hawaii.)
In addition to this final rule, the Service is publishing three
related documents elsewhere in today's Federal Register: a notice of
availability of the final environmental assessment for the definition
of ``disturb''; a notice of availability for National Bald Eagle
Management Guidelines; and a proposed rule to codify additional take
authorizations under the Eagle Act.
DATES: This rule goes into effect on July 5, 2007.
FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory
Bird Management, (see ADDRESSES section); or via e-mail at:
Eliza_Savage@fws.gov; telephone: (703) 358-2329; or facsimile: (703) 358-
2217.
SUPPLEMENTARY INFORMATION:
Background
On February 16, 2006, in anticipation of possible removal
(delisting) of the bald eagle in the 48 contiguous States from the List
of Endangered and Threatened Wildlife under the Endangered Species Act
(ESA) (16 U.S.C. 1531 et seq.), we proposed a regulatory definition of
``disturb'' under the Bald and Golden Eagle Protection Act (Eagle Act)
(16 U.S.C. 668-668d) to guide post-delisting bald eagle management (71
FR 8265). The Service concurrently proposed two other related actions:
(1) A notice of availability of draft National Bald Eagle Management
Guidelines (Guidelines) (71 FR 8309, February 16, 2006); and (2) a
reopening of the comment period on our proposal to remove the bald
eagle from the List of Endangered and Threatened Wildlife under the ESA
(71 FR 8238, February 16, 2006). On May 16, 2006, we extended the 90-
day comment period on those actions by 30 days, to June 19, 2006 (71 FR
28293). Fifty-five respondents commented on both the definition of
disturb and the draft Guidelines. Eighteen commented on the definition
only and 31 commented on the Guidelines only.
The definition of ``disturb'' we proposed on February 16, 2006
read: ``Disturb means to agitate or bother a bald or golden eagle to
the degree that interferes with or interrupts normal breeding, feeding,
or sheltering habits, causing injury, death, or nest abandonment.'' On
December 12, 2006, we made available a Draft Environmental Assessment
(DEA) of our proposed definition of ``disturb,'' and announced its
availability through a notice in the Federal Register (71 FR 74483). In
the DEA, we considered a definition slightly modified from the
definition proposed in February as our preferred alternative. The
definition was reworded for purposes of clarity, and included a
definition of ``injury,'' a term used in the definition of ``disturb.''
During this round of public comment, we received 1,977 comments,
approximately 1,875 of which were very similar to one another.
The definition of disturb we are codifying through this rulemaking
is a modification of the definition we identified as our preferred
alternative in the DEA and reflects our consideration of the various
concepts raised to us in the comment processes. The following
definition of ``disturb'' will be codified in regulations at 50 CFR
22.3: ``Disturb means to agitate or bother a bald or golden eagle to a
degree that causes, or is likely to cause, based on the best scientific
information available, (1) injury to an eagle, (2) a decrease in its
productivity, by substantially interfering with normal breeding,
feeding, or sheltering behavior, or (3) nest abandonment, by
substantially interfering with normal breeding, feeding, or sheltering
behavior.'' The final definition thus reduces uncertainty, adds
clarity, and appropriately implements the Eagle Act.
The definition was reworded from the preferred alternative in the
DEA to address concerns expressed about enforceability and
predictability. The earlier definitions we had proposed required
injury, death, or nest abandonment to have occurred, whereas the final
definition includes the phrase ``or is likely to cause,'' with the
result that all actions that are likely to cause the biologically
significant event (injury, loss of productivity, or nest abandonment)
by agitating and interfering with eagles will constitute disturbance,
whether or not the harm is documented. Requiring actual injury, death,
or nest abandonment was viewed as creating uncertainty as to whether a
disturbance has taken place or whether it will, since death or injury
will almost always occur at a later date and sometimes a different
location. It also implies that actual harm will have to be proven to
have taken place, which would make the prohibition difficult to enforce
without evidence of a dead or injured eagle. The final definition is
more consistent with the separate elements used in the Eagle Act to
define ``take'' as well as how the term ``disturb'' has been applied in
the past for managing eagles. We are not aware of any local, State,
Federal, or tribal guidance or regulation that interprets the term
``disturb'' to require a threshold as severe as wounding or death.
We believe the addition of the phrase ``likely to cause, based on
the best scientific information available'' in the final rule increases
predictability and is the logical outgrowth of the comment process.
Many commenters, including numerous state wildlife agencies and our own
Office of Law Enforcement, encouraged us to incorporate a
``likelihood'' clause for purposes of predictability and
enforceability. Without such a clause, similar actions may be treated
differently, depending on their outcome. Additionally, the phrase is
consistent with the goal of the Eagle Act of protecting eagles by
preventing injury. The Service will use the best available information
to predict the likely outcomes of an action or activity. If it is clear
an action is likely to cause one of the negative results, there is a
high degree of predictability that the disturbance will occur in
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violation of the Eagle Act. It is at this time, when the actor is
contemplating the action, that predictability is important, because
that is when alternatives are available.
In addition to immediate impacts, this definition also covers
impacts that result from human-caused alterations initiated around a
previously used nest site during a time when eagles are not present,
if, upon the eagle's return, such alterations agitate or bother an
eagle to a degree that injures an eagle or substantially interferes
with normal breeding, feeding, or sheltering habits and causes, or is
likely to cause, a loss of productivity or nest abandonment.
Because one of the criteria for disturbance in the proposed
definition of ``disturb'' was ``injury,'' we proposed in the DEA to
define ``injury'' to clarify our intent. We included the following
definition of ``injury'' as part of our preferred alternative in the
DEA: ``Injury means a wound or other physical harm, including a loss of
biological fitness significant enough to pose a discernible risk to an
eagle's survival or productivity.'' We intended this definition to
clarify that ``injury'' is not restricted to a wound in which skin is
torn or bruised, or bones are broken. Defining ``injury'' to include a
decrease in biological fitness of the eagle significant enough to
affect productivity would clarify that interference with feeding and
sheltering habits can cause disturbance short of the eagle being
wounded or killed. The inclusion of decreased productivity in the
definition of ``injury'' underscored the biological premise that
preservation of eagles depends on protection from disturbance when
feeding and sheltering as well as when nesting. In this final rule, we
do not define ``injury'' separately because the final definition of
``disturb'' directly incorporates the phrase ``decrease in its
productivity,'' removing the need for a separate definition of
``injury.''
A decrease in productivity refers to the reproductive capacity of
the eagle(s). A decrease in productivity can be caused by events that
occur at various stages of an eagle's life cycle. For example, a
decrease in productivity can occur because eagles are not fit enough
after the wintering season to breed (e.g., if they have not adequately
fed or sheltered). A decrease in productivity can also occur after
eagles have initiated breeding behaviors; for example, if they do not
lay eggs or lay fewer eggs than would be expected based on the best
scientific information available, due to interruptions in their normal
behavior. It may also occur if eggs do not hatch after being exposed to
extreme heat or cold in the absence of the adults, or when nestlings do
not survive long enough to fledge because they are not adequately fed
by adults due to interference at an important foraging area. All of
these outcomes can be caused by factors unrelated to human activity. A
decrease in productivity is only a prohibited disturbance if it is the
result, or likely to be the result, of activities by humans that
agitates and bothers the birds and substantially interferes with
breeding, feeding, or sheltering behavior.
The final definition removes the reference to death, since
``injury'' is a broader term than ``death'' and encompasses injury that
results in death. Also, as several commenters noted, killing eagles is
already prohibited under the Eagle Act, so it is not necessary to
repeat that prohibition within the definition of ``disturb.'' We also
note that a definition of ``disturb'' that required death or injury
might be vulnerable to a claim that the definition renders the word
``disturb'' as surplusage, given that the Eagle Act's definition of
``take'' separately lists the terms ``kill'' and ``wound.''
We also note that the only court to have addressed the relationship
between the prohibitions of the ESA and the Eagle Act stated:
Both the ESA and the Eagle Protection Act prohibit the take of
bald eagles, and the respective definitions of ``take'' do not
suggest that the ESA provides more protection for bald eagles than
the Eagle Protection Act * * *. The plain meaning of the term
``disturb'' is at least as broad as the term ``harm,'' and both
terms are broad enough to include adverse habitat modification.
(Contoski v. Scarlett, Civ No. 05-2528 (JRT/RLE), slip op. at 5-6
(D. Minn. Aug 10, 2006).)
In any event, the final definition cannot--and does not--broaden
the protections provided by the Eagle Act, but merely clarifies the
meaning of the protection that exists.
Response to Comments on the Definitions Identified in the February 16,
2006, Proposed Definition and the Draft Environmental Assessment
Comment 1: The Service needs to formally grandfather existing ESA
take authorizations under section 10 permits and section 7 biological
opinions.
Service response: If the bald eagle is delisted, the Service will
honor existing ESA incidental take authorizations. At least until we
complete a rulemaking for permits under the Bald and Golden Eagle
Protection Act, we do not intend to refer for prosecution the take of
any bald eagle under the Migratory Bird Treaty Act of 1918, as amended
(16 U.S.C. 703-712), or the Bald and Golden Eagle Protection Act of
1940, as amended (16 U.S.C. 668-668d), if such take is in full
compliance with the terms and conditions of an incidental take
statement issued to the action agency or applicant under the authority
of section 7(b)(4) of the ESA or a permit issued under the authority of
section 10(a)(1)(A) or 10(a)(1)(B) of the ESA. Consistent with its
authority under the Eagle Act, the Service has proposed in today's
Federal Register, a separate rulemaking to establish criteria for
issuance of permits to authorize the ``take'' of bald and golden
eagles. We address previous ESA authorizations for incidental take of
bald eagles in that rulemaking, which, if finalized, would extend
comparable authorizations under the Eagle Act.
Comment 2: The Service should provide assurances to persons who
received ``authorizations'' granted through letters of technical
assistance while the bald eagle was listed under the ESA.
Service response: The nature and degree of assurances that were
provided by letters of technical assistance will not be altered by
removal of the bald eagle from the list of threatened wildlife under
the ESA.
Comment 3: A new incidental take permitting system needs to be
developed under the Eagle Act. A mechanism is needed to address
situations where incidental take will be unavoidable (e.g., highway
maintenance, bald eagles nesting at the end of an airport runway). An
incidental take permit would provide conservation benefits because it
would allow the Service to work with applicants to establish mitigation
measures that can provide a net benefit to eagles and other wildlife.
Moreover, a permit mechanism with associated monitoring and reporting
requirements would provide the Service with valuable data and
information about the real effects of activities on eagles, allowing
the Service to modify management practices accordingly. The Eagle Act
provides for this type of incidental take authorization by inclusion of
the following language: ``Whenever, after investigation, the Secretary
of the Interior shall determine that it is compatible with the
preservation of the bald eagle or the golden eagle to permit the
taking, possession, and transportation of specimens thereof `` or that
it is necessary to permit the taking of such eagles for the protection
of wildlife or of agricultural or other interests in any particular
locality, he may authorize the taking of such eagles pursuant to
regulations which he is
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hereby authorized to prescribe'' (16 U.S.C. 668a).
Service response: We agree with this comment and have proposed a
take permit regulation, published in today's Federal Register, that
would authorize the take of bald and golden eagles under certain
conditions, including requirements for conservation measures and
monitoring. The regulations we have proposed would (1) establish a take
permit under the Eagle Act, (2) extend Eagle Act authorizations
comparable to the authorizations granted under the ESA to entities who
continue to operate in full compliance with the terms and conditions of
permits issued under ESA section 10 and incidental take statements
issued under ESA section 7, and (3) authorize take of eagle nests that
pose a risk to human safety or to the eagles themselves.
Take permits would be issued under 50 CFR part 22, Eagle Permits.
The permits would also provide any necessary authorization under the
Migratory Bird Treaty Act, as implemented through 50 CFR 22.11(a),
which states, ``You do not need a permit under parts 17 and 21 `` for
any activity permitted under this part 22 with respect to bald and
golden eagles.'' The take permit provisions would primarily authorize
disturbance of eagles. However, the regulations could also authorize
other take of eagles where such take cannot be avoided. For example,
take could be authorized for a utility that follows best management
practices for minimizing eagle mortalities. Even the use of best
management practices cannot ensure that eagles will not be killed by a
collision with power lines, and the regulation could cover such take.
Comment 4: As currently written, harm to eagles would have to be
proven after the fact, despite the widespread knowledge that many
effects on eagles have predictable results. The definition restricts
enforcement to incidents where death, injury, or nest abandonment has
already occurred. In addition, the injury or death will almost always
occur at a later date and sometimes a different location. This type of
after-the-fact cause and effect relationship would make violations too
difficult to legally establish, and would seriously compromise law
enforcement and fail to protect eagles. Another unfortunate result will
be that equally culpable acts will be treated differently depending on
whether a dead or wounded eagle is recovered. Neither the actor nor the
government can know whether the action is lawful or unlawful.
Service response: We agree with these concerns. To address them, we
modified the definition to make clear that it encompasses impacts to
eagles that cause ``or are likely to cause'' injury, decreased
productivity or nest abandonment. This definition no longer restricts
enforcement to situations where death, injury, or nest abandonment has
already occurred. The definition codified by this rule therefore
facilitates law enforcement, avoids the use of the term ``kill,'' which
is also defined in the Eagle Act as a take, adds predictability for the
regulated public by treating similar actions the same way, and ensures
better protection for eagles.
Comment 5: The threshold impacts of death, injury, and nest
abandonment are too extreme. The regulatory definition of ``disturb''
should be closer to the plain meaning of the term in common usage,
which does not imply any such severe results. Furthermore, the Eagle
Act already makes it illegal to ``wound'' and ``kill'' eagles, so the
proposed definition is largely redundant.
Service response: The modifications we describe in our preceding
response address these concerns in part. In addition, see the
discussion in the Final Environmental Assessment explaining why
defining ``disturb'' as simply causing a physiological response in an
eagle is inconsistent with the intent of the BGEPA.
Comment 6: The Eagle Act only prohibits intentional and non-
incidental take. ``Disturb'' can only apply where the act is
intentionally directed at eagles.
Service response: We do not agree that the Eagle Act protects
eagles only from actions intentionally directed at them, and that
``disturb'' was not meant to apply to other indirect or incidental
impacts to eagles. Such an interpretation is too large a deviation from
the common usage of the word ``disturb,'' which more often than not
refers to incidental impacts (e.g., her tranquility was disturbed by
the neighbor's leaf blower). Also, Congress reaffirmed the Eagle Act's
prohibition of incidental take in 1978, when it amended the Eagle Act
to authorize the issuance of permits to take golden eagle nests.
Without the amendment, mining companies faced violating the Eagle Act
by incidentally taking golden eagles during mining operations.
Comment 7: The Eagle Act only applies where an act was committed
``knowingly or with wanton disregard.'' The definition should
incorporate that requirement.
Service response: This comment fails to discern between the
criminal provisions of the Act, which require those elements, and the
civil provisions, which do not. Congress specifically left that phrase
out of the Eagle Act section addressing civil penalties (16 U.S.C.
668(b)), signaling that civil violations are subject to strict
liability standards. For criminal violations, since the statute already
limits those to acts that are conducted ``knowingly or with wanton
disregard'' (16 U.S.C. 668(a)), there is no reason to repeat the phrase
within the definition of ``disturb.''
Comment 8: The definition should require a negligent standard of
conduct in order to add fairness, objectivity, and a predictable
standard to the proposed regulation. We see nothing in the overall
definition of take to imply that Congress wanted the Eagle Act to
punish good faith or innocent conduct.
Service response: Criminal penalties under the Eagle Act already
require a negligent standard conduct. Therefore, innocent conduct
committed in good faith is not subject to criminal prosecution. As
noted in our preceding response, Congress deliberately enacted a strict
liability standard for civil penalties, a standard that uniformly
applies to each prohibition of the act. Even so, the Service has
rarely, if ever, brought any kind of enforcement action under the Eagle
Act against a person acting in good faith, even where eagles have been
killed. Also, to reduce the possibility that people will innocently
violate the Eagle Act by disturbing eagles, we have developed
Guidelines for how to conduct activities to minimize the potential for
inadvertent disturbance. As stated in the Guidelines, we will
prioritize enforcement efforts to focus on violations committed without
regard to the consequences of the actions and the availability of
conservation measures such as those recommended in the Guidelines. We
also have proposed permit regulations to establish a means by which a
person can gain authorization to take eagles, and thereby avoid
criminal or civil liability.
Comment 9: The definition inappropriately incorporates habitat
protection, which is not authorized by the Eagle Act.
Service response: The Service agrees that the Eagle Act is not a
habitat management law, however, there is a difference between
protecting habitat per se, and protecting eagles in their habitat. The
proposed and final definitions protect eagles from certain effects to
the eagles themselves that are likely to occur as the result of various
activities, including some habitat manipulation.
Comment 10: The proposed definition will not satisfy the Eagle
Act's
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conservation goals; it should be revised to explicitly include habitat
modification or degradation.
Service response: The Eagle Act contains no provisions that
directly protect habitat except for nests. Individual members of the
species are protected from certain effects to themselves that are
likely to occur as the result of various human activities, including
some habitat manipulation. Activities that disrupt eagles at nests,
foraging areas, and important roosts can wound, kill, or disturb
eagles, each of which is specifically prohibited by the Eagle Act.
Therefore, eagle nests, important foraging areas, and communal roost
sites are accorded protection under the Eagle Act to the degree that
their loss would disturb or kill eagles.
Comment 11: The definition of disturb should not apply to feeding
or sheltering eagles or to the impacts of activities that take place
outside the nesting season.
Service response: The Eagle Act's stated goal is the preservation
of the bald eagle and the golden eagle. We are aware of no provision of
the Eagle Act or its legislative history to suggest that, in enacting
the law, Congress intended to protect only breeding eagles from
disturbance, and only during the nesting season. Activities that
disrupt eagles at foraging areas and important roosts can lead to
decreased productivity, injury, or death.
Comment 12: Under the proposed definition, ``injury'' is not
defined and could be interpreted narrowly to equate with ``wound.'' If
so, the prohibition against disturbing eagles will have no meaning
independent of the Eagle Act's other prohibitions against wounding and
killing eagles, unless a nest is abandoned. The proposed definition
would provide little protection for eagles at communal wintering sites
and foraging areas, since neither wounding nor death is likely to be
directly connected to the disruption of feeding or sheltering behavior,
even though such disruption can affect survival and productivity.
Service response: We agree that the definition proposed on February
16, 2006 (71 FR 8265), did not adequately protect nonbreeding eagles.
Because the threshold requirement was injury, death, or nest
abandonment, the definition could have been interpreted to mean that,
aside from the scenario of nest abandonment, an eagle would have to be
wounded (e.g., cut or bruised) or killed to have been disturbed. We
believe that threshold was too high and did not adequately protect
eagles other than when they are nesting (when nest abandonment is an
issue) and was inconsistent with the statutory definition of ``take''
because ``wound'' and ``kill'' were separate specified elements of
``take.'' To address this weakness, the preferred alternative of our
DEA included a definition of ``injury'' to clarify that it includes a
``loss of biological fitness significant enough to pose a discernible
risk to an eagle's survival or productivity.'' That definition better
protects non-breeding eagles from disturbance at foraging areas and
winter roost sites, where human activity is unlikely to actually wound
or kill an eagle, but may have serious effects on long-term viability.
Although the final rule does not contain a separate definition of
``injury,'' it instead incorporates such elements into its definition
of ``disturb.''
Comment 13: Including nest abandonment in the definition raises the
possibility that a one-time departure from the nest could constitute
nest abandonment. ``Nest abandonment'' needs to be defined in the
regulation to exclude mere flushing from the nest.
Service response: The Service defined ``nest abandonment'' in the
glossary to the draft Guidelines (see 71 FR 8309, February 16, 2006),
which have now been finalized after considering comments received from
the public (see our notice of availability in today's Federal Register
and our Web site at http://www.fws.gov/migratorybirds/baldeagle.htm).
We do not believe it is necessary to also include this definition in
the final rule.
Comment 14: Nest abandonment should not be included in the
definition of disturb. If no injury or death has occurred, then nest
abandonment should not be of concern. The proposed definition would
apply to situations in which adult eagles do not return to a particular
tree to nest, on either a temporary or permanent basis, without adverse
biological effect and for a variety of reasons not related to human
activity. This leaves far too much discretion to the individual
enforcement authorities at FWS, and creates an impossible burden of
proof for those trying to implement projects or engage in needed
maintenance activities. Also, there is no clear standard as to the
contribution of human activity to nest abandonment. This will result in
strict liability regardless of whether their activity can be shown to
have caused the abandonment.
Service response: First, nest abandonment is not always due to
interference from humans. Nest abandonment caused by non-human factors
is not a violation of the Eagle Act. The fact that similar outcomes can
be brought about by other factors is no reason not to regulate human-
caused outcomes. This is similar to other actions and results
prohibited by the Eagle Act and many other statutes. For example, all
eagles die eventually, whether or not someone kills them. This does not
prevent the Service from enforcing the Eagle Act's prohibition against
killing eagles. Only ``nest abandonment caused by intentional human
activity that disturbs eagles would be subject to criminal prosecution.
We view the standard set in this definition as sufficiently high to
avoid capturing activities conducted according to a reasonable standard
of care based on readily available guidance, and therefore we disagree
that it creates an impossible burden of proof for those attempting to
comply. Enforcement authorities will continue to exercise the
discretion they have (which arguably will be reduced substantially
merely by the promulgation of this clarifying regulation) in a
reasonable manner. As far as the concern regarding strict liability,
the inclusion of ``nest abandonment'' would not result in strict
liability any more than many legal prohibitions, including the Eagle
Act's prohibition against killing eagles. In any case, even strict
liability requires a showing of causation. In fact, the burden of proof
would be greater for nest abandonment. First, the Service would have to
demonstrate that an eagle was agitated or bothered, then that there was
substantial interference with normal breeding, feeding, or sheltering
behaviors, then that the activity, based on the best scientific
information available, either caused or was likely to cause the
abandonment.
Second, nest abandonment may have an adverse biological impact even
without an eagle being killed or injured. Nest abandonment prior to
egg-laying will generally have a negative effect on eagle productivity
unless the eagles use an alternate nest without significant delay.
Therefore, eagle populations can be affected by nest abandonment
without the occurrence of actual injury or death of nestlings or eggs.
Third, even where eagles re-nest elsewhere and successfully breed,
the disturbance will have a long-term effect on eagles if the
interference continues until the nest is no longer viable. The
Guidelines suggest that, after five years of disuse, nests may no
longer merit protection from disturbance. When human activities
completely surround the nest at close proximity, eagles will usually
not re-use the nest. After five years, the nest site would be lost for
all intents and purposes, and may result in a significant biological
impact on eagles. In Florida, for example, many biologists
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believe that bald eagles have been nesting in closer proximity to
humans and to one another because available nest sites are limited,
leading to speculation that eagle populations in Florida will not
significantly increase from current size, due to a lack of available
nest sites. If so, the loss of a nest site will result in a decrease in
the eagle population. The Eagle Act specifically protects nests. That
statutory protection recognizes that nests are biologically significant
structures constructed in specific locations selected by eagles because
of the presence of various ecological factors necessary for survival
and productivity.
Comment 15: The Service should add the word ``premature'' before
nest abandonment to clarify that it does not include the scenario where
eagles do not occupy a nest in a given year, switching to another nest
nearby, or building a new nest and not using the old one.
Service response: The guidelines provide for consideration of
impacts to nests and alternate nests. Alternate nests are important to
eagle productivity, and are protected by the Eagle Act.
Comment 16: Including nest abandonment in the definition extends
liability beyond proximate cause and results in too much uncertainty
for the public. Landowners need to know in advance whether their
actions might disturb eagles. The proposed definition does not provide
enough certainty.
Service response: With regard to its prohibition of disturbance,
the Eagle Act is concerned with a result of an action (with respect to
the eagle), rather than the action itself. This is a common feature of
wildlife laws. (Such laws, including the Eagle Act, also directly
prohibit actions, such as importing or shooting at the protected
species.) A level of uncertainty is inherent in any statute that
prohibits results, rather than actions, as one can never be sure what
the results of a particular action might be. However, to minimize this
uncertainty as much as possible while maintaining consistency with the
statutory language, in response to the comments received we have
revised the definition to include the phrase ``or is likely to cause.''
Inclusion of this phrase will enable people to better predict when
their actions may violate the Eagle Act by disturbing eagles,
particularly in conjunction with the guidance provided by the
Guidelines, which publicize our recommendations for avoiding
disturbance. To further reduce uncertainty, we have proposed
regulations, published separately in today's Federal Register, that
would provide for issuance of permits for take of eagles; obtaining
such a permit would essentially eliminate any remaining uncertainty.
Comment 17: If an eagle returns from its wintering grounds to the
vicinity of its nest at a heavily altered site but never returns to the
actual nest because the landscape has changed very drastically, the
habitat modification might not be a disturbance under the proposed
definition, but it should be.
Service response: We do not believe that the Eagle Act was meant to
prohibit habitat modification that is undetected by eagles, so if the
eagle(s) never return to the site at all, the habitat alterations
should not be per se attributed as the cause. However, we do intend
that the definition still applies to a situation where eagles, as part
of their normal nesting behavior, return to the vicinity of the nest,
but the habitat alterations are so vast in scale that the eagles become
agitated as a result, alter their behavior, and never return to the
nest itself.
Comment 18: The extension of the proposed definition to ``impacts
that result from human-induced alterations initiated around a
previously used nest site during a time when eagles are not present''
is unreasonable and places an impossible burden on landowners. If
``nest abandonment'' remains in the definition of disturb, it should be
defined narrowly to mean ``premature abandonment of an active nest
during the nesting season.''
Service response: We disagree that the prohibition against
disturbance should exclude impacts to eagles that occur after the
activity takes place. Such an exclusion would mean that an activity
that causes eagles to abandon a nest could qualify as a disturbance if
the eagles were present, but not if the activity was conducted when
eagles were away from the nest, whether for a season or a few hours--
even if the reaction of (and effect on) the eagles is identical in both
cases.
Comment 19: Disturbance should not require injury, death, or nest
abandonment. Too many problems are occurring in Alaska because of
people feeding eagles, and the definition of disturb should make the
practice illegal without requiring such a high threshold.
Service response: Although the Eagle Act does not directly prohibit
feeding eagles, the final definition protects eagles from situations
where eagle feeding is likely to injure eagles.
Comment 20: Although stated in the preamble, the definition needs
to be clearer that the death or injury can occur to eagles other than
those that are disturbed (e.g., young or eggs).
Service response: The wording of the final definition more clearly
conveys that ``disturb'' incorporates the injury of an eagle other than
the one that was agitated or bothered.
Comment 21: The definition should specifically exclude impacts to
nests that have not been used for 5 years, to mirror the draft
Guidelines, which state ``The likelihood that an alternate nest will
again become active decreases the longer it goes unused. If you plan
activities in the vicinity of an alternate bald eagle nest and have
information to show that the nest has not been active during the
preceding 5 nesting seasons, the recommendations provided in these
guidelines for avoiding disturbance around the nest site may no longer
be warranted.''
Service response: We do not agree that the regulatory definition of
``disturb'' is the appropriate vehicle to transmit Service
recommendations regarding the likelihood of eagle nest re-use. Such
recommendations are more appropriately housed under the Guidelines, as
written. The Service will prioritize enforcement efforts under the
Eagle Act to focus on violations committed without adhering to the
Guidelines.
Comment 22: Disturb should be defined to explicitly exclude any
impacts resulting from activities conducted in accordance with a State-
approved Bald Eagle Management Plan.
Service response: We do not believe it is appropriate or that the
Eagle Act affords us the discretion to establish a definition that
would differ in application from State to State. The Eagle Act is a
Federal statute, and the prohibitions it contains have general
applicability throughout the United States.
Comment 23: A permit for intentional take of nests needs to be
available. Situations arise where the location of eagle nests
jeopardizes human safety, or the eagles themselves.
Service response: We agree that a permit regulation may be
warranted to authorize removal or relocation of eagle nests under
limited circumstances. We have proposed a regulation, published
separately in today's Federal Register, to establish a permit process
in the near future that would include such a provision.
Comment 24: More discussion needs to be included as to how the
definition will affect golden eagle management.
Service response: Due to different geographic preferences, human
activities are less likely to conflict with golden eagles than bald
eagles. Because fewer activities have the potential to disturb golden
eagles, the effect of
[[Page 31137]]
defining ``disturb'' will be relatively small in relation to golden
eagles in comparison to bald eagles. However, we recognize that
disturbance caused by human activities can still be an issue with
respect to golden eagles. We intend to more fully address golden eagle
disturbance as part of the National Environmental Policy Act assessment
of the Eagle Act take permit regulations we are proposing.
Comment 25: The Eagle Act was meant to protect eagles from
significant stress that affects their ability to forage, nest, roost,
breed, or raise young. Any activity that causes such stress should be
considered a violation of the Act.
Service response: The final definition of ``disturb'' encompasses
impacts that, based on the best scientific information available, are
likely to cause injury to an eagle, or a decrease in its capacity to
reproduce. In contrast to the approach suggested by the commenter,
however, the definition provides a measure of predictability to the
regulated community by indicating thresholds that can be detected or
anticipated by the actor or someone trying to enforce the law.
Comment 26: The definition should prohibit ``repeated
displacement'' of eagles from their nests and roosts.
Service response: To the degree that repeated displacement of
eagles from their nest is associated with injury or nest abandonment,
it can be a useful indicator of disturbance. However, temporary impacts
such as ``repeated displacement'' are not relevant unto themselves to
the preservation of eagles; they are relevant only if they produce the
likelihood of meaningful biological effects.
Comment 27: In the definition of ``injury'' the phrase ``pose a
discernible risk'' (to an eagle's survival or productivity) should be
removed because it's speculative and hypothetical. Instead, the
definition should require that the eagle actually dies or doesn't
breed, rather than capturing effects that only ``risk'' such an
outcome. The ESA definition of ``harm'' requires actual injury or
death.
Service response: The ESA definition of ``harm'' does require
injury or death, but ``harass'' requires only the ``likelihood of
injury.'' We see no reason to assume that ``disturb'' would resemble
``harm'' rather than ``harass,'' and we find limited utility in
comparing either ESA term to the Eagle Act's prohibition of
``disturb.'' All three are distinct definitions, and ``disturb'' is
from a separate statute enacted 33 years before the ESA. It is useful
to compare the ESA terms with ``disturb'' in order to determine certain
types of sentence construction that may hinder or facilitate compliance
with and enforcement of the statute. Having done this comparison, we
initially thought that the phrase ``pose a discernible risk'' was
helpful in those regards. To require that the death or loss of
productivity be documented could make it difficult to enforce the
prohibition. The final definition of disturb no longer incorporates the
phrase ``pose a discernible risk,'' but it does include ``or is likely
to cause,'' which we believe is both readily understandable and will
help prevent adverse effects to eagles.
Comment 28: (From numerous airport authorities) We are concerned
about maintaining airport safety in light of the risk of air strikes
with eagles and the prohibition against disturbing them.
Service response: We appreciate the gravity of these concerns.
However, we see no reasonable definition of disturb that would exclude
the intentional harassment and displacement of eagles necessary to
remove eagles from the vicinity of airports, while adequately
protecting eagles from many other potentially disturbing activities
that would adversely affect them. Permits are already available and
routinely issued under 50 CFR 22.23 (Depredation) to intentionally haze
eagles at airports for purposes of human safety. We agree that a permit
regulation may be warranted to authorize removal or relocation of eagle
nests under circumstances of human health and safety such as at
airports. We have proposed a regulation to establish a permit process
that includes such a provision (published separately in today's Federal
Register).
Comment 29: In light of the Service's April 15, 2003, Migratory
Bird Permit Memorandum, it would be helpful if the Service would
clarify whether removal of an unoccupied eagle nest would constitute a
violation of the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712)
or the Eagle Act.
Service response: As explained in the memorandum referenced by the
commenter, it is illegal to collect, possess, and by any means transfer
possession of any nest of a species protected by the MBTA, but the MBTA
does not contain any prohibition that applies to the destruction of a
bird nest alone (without birds or eggs), provided that no possession
occurs during the destruction. Thus, destruction of unoccupied nests
with no prohibited impacts to a migratory bird (or egg) does not
require a MBTA permit. However, the public should be made aware that,
while destruction of a nest itself is not prohibited under the MBTA,
nest removal that results in the unpermitted take of migratory birds or
their eggs is illegal and fully prosecutable under the MBTA.
Furthermore, some unoccupied nests are legally protected by statutes
other than the MBTA, including nests of bald and golden eagles. The
Eagle Act protects nests from removal by a number of means, including
its inclusion of the term ``molest'' as part of ``take'' (16 U.S.C.
668c). Congress reaffirmed the Eagle Act's protection of inactive nests
when it amended the Act in 1978 to direct the Secretary of the Interior
to make permits available for incidental take of inactive golden eagle
nests for resource development and recovery operations. A permit would
not be necessary if such take were not otherwise prohibited by the Act.
Comment 30: Does the removal of large trees occasionally used by
roosting and perching eagles constitute a violation of the Eagle Act?
Service response: Removal of trees is not in itself a violation of
the Eagle Act. The impacts of such action can be a violation, however,
if the loss of the trees kills an eagle, or agitates or bothers a bald
or golden eagle to the degree that results in injury or interferes with
breeding, feeding, or sheltering habits substantially enough to cause a
decrease in productivity or nest abandonment, or create the likelihood
of such outcomes. However, if the large trees are only occasionally
used, the probability of such an outcome is lower than if the trees
were within a traditional communal roost site or were the primary perch
trees used by eagles in an important foraging area.
Comment 31: The definition should include protection of traditional
nest and roost sites during seasons of the year when eagles are not
present.
Service response: The Eagle Act does not directly protect habitat
(except nests), but manipulation of important eagle use areas,
including nests and communal roosts, that results in a prohibited
``take'' under the Eagle Act would constitute a violation of the Act.
Therefore, roost sites are accorded protection under the definition to
the degree that their loss would result in eagle disturbance. For
example, if destruction of an important bald eagle winter roost site
would agitate the eagles that roost there and interfere with feeding
and/or sheltering significantly enough to decreasing productivity, then
the roost destruction could constitute a violation.
Comment 32: The definition should include communal roost
abandonment as explicitly as it addresses nest abandonment. The phrase
``nest abandonment'' should be replaced with
[[Page 31138]]
nest abandonment or communal roost abandonment.''
Service response: While many communal roost sites are identified
and well documented, some may not be. The Guidelines define ``communal
roost sites'' as ``[a]reas where bald eagles gather and perch overnight
`` and sometimes during the day in the event of inclement weather.
Communal roost sites are usually in large trees (live or dead) that are
relatively sheltered from wind and are generally in close proximity to
foraging areas. These roosts may also serve a social purpose for pair
bond formation and communication between eagles. Many roost sites are
used year after year.'' Although many communal roost sites are well
known to the public, such as at Mason Neck Wildlife Refuge in Virginia,
a satisfactory definition of ``communal roost site'' that would clearly
distinguish all of the important areas upon which eagles depend from
all other habitat where eagles might sometimes gather and roost has not
(to our knowledge) been put forward by eagle biologists, State
agencies, or other wildlife managers. Further, because of the lack of
documentation of traditional use of all such areas, we believe it would
be problematic to explicitly reference communal roost site abandonment
in the same manner as nest abandonment.
Comment 33: Long-term habitat protection will be critical to
continued recovery and management of bald eagles throughout the nation.
The lack of regulatory protection for concentration areas and foraging
habitats will result in the degradation of habitats necessary for both
nesting and non-breeding eagles. Protection of nest sites will not be
enough to sustain eagle populations, which rely on a matrix of habitats
to meet their life-cycle requirements. The definition of ``injury''
should be broadened to specifically include disturbance to essential
habitats as under the definition of ``harm'' in the ESA.
Service response: Habitat manipulation can amount to a violation of
the ESA if it ``harms'' a protected species, meaning injures or kills
it (by impacting essential behavior patterns). Although there is no
specific reference to habitat in the definition of ``disturb,'' habitat
degradation can also cause a prohibited disturbance under the Eagle
Act, and not just around nest sites, to the extent the activity results
in injury, decreased productivity, or nest abandonment.
Comment 34: The phrase ``agitate or bother'' should be removed
since the Eagle Act's intent is to prevent physical harm of eagles. The
terms could be interpreted to include non-physical harms.
Service response: In order for disturbance to occur, the agitation
or bother must lead to injury, or substantially interfere with
breeding, feeding, or sheltering to the degree that causes, or is
likely to cause, decreased productivity or nest abandonment. Each of
these outcomes is a physical harm. Without the phrase ``agitate or
bother,'' the definition would no longer require a direct effect on one
or more eagles. This would broaden the definition's applicability. For
example, excessive agricultural runoff might then be said to
``disturb'' eagles since it might interfere with breeding, feeding, or
sheltering, and cause decreased productivity. We do not believe such a
broad application was intended by Congress when it included the term
``disturb'' in the definition of take in the Eagle Act.
The word ``directly'' should be added to the definition before
``causes'' in order to meet the ``knowingly'' standard of the Eagle
Act.
Service response: Adding ``directly'' would not affect whether the
act was committed knowingly, since the potential outcome (loss of
productivity, death, or nest abandonment) is still a result of the
action, whether direct or not. Whether the actor sees the result is
immaterial to whether he knew at the time he acted that his conduct
would probably result in disturbance. The latter is at issue in the
Eagle Act. (The Eagle Act's standard that an act be committed
``knowingly or with wanton disregard'' only applies to criminal
violations. Civil violations do not require this standard.)
Additionally, we specifically do not intend disturbance to be limited
to situations where the outcome is immediately evident. The Eagle Act
makes no distinction between immediate or direct effects to eagles and
those that can reasonably be foreseen, as evidenced by its prohibition
of eagle poisoning, and our enforcement of cases where the poisoning
was secondary but foreseeable. The Guidelines, and our staff, are
available to the public to assist in determinations of what activities
are likely to result in a violation of the Eagle Act.
Comment 36: Unlike bald eagles, golden eagles are not on the
Federal List of Endangered and Threatened Wildlife. Therefore, there is
no need to buttress Eagle Act protections for golden eagles to
compensate for bald eagle delisting pursuant to the ESA.
Service response: The Eagle Act equally protects both species of
eagles from disturbance. The statute treats golden eagles somewhat
differently than bald eagles in that it provides broader authority to
permit certain otherwise prohibited activities in relation to golden
eagles (16 U.S.C. 668a). However, the prohibition against disturbance
applies in the same way to both species under the Act (16 U.S.C. 668(a)
and (b)).
Comment 37: Under the ESA, permits were available for incidental
take of bald eagles. Many project proponents who have relied on such
authorizations will be put in an untenable position if the Service
issues a final delisting decision before incidental take regulations
are in place.
Service response: We recognize the difficult position in which many
developers, transportation officials, and others will find themselves
(without a means to authorize take of bald eagles) if the bald eagle is
delisted before the time that regulations for a take permit are
finalized. The Service intends to place a high priority on completing
the rulemaking that would establish a permit program authorizing
``take'' of eagles, as appropriate, while maintaining the statute's
requirement of protection and conservation of bald and golden eagles.
In the interim, the Service will use the Guidelines and provide
technical assistance to the public to minimize the ``take'' of eagles.
As a result of the court-ordered deadline, the Service is required to
issue a final decision on the delisting by June 29, 2007 (extended from
February 16, 2007), which does not allow enough time to promulgate a
final rule for a permit program before a decision on delisting is due.
See Contoski v. Scarlett, Civil No. 05-2528 (JRT-RLE) (D. Minn. August
10, 2007).
Required Determinations
Energy Supply, Distribution or Use (E.O. 13211). Executive Order
13211 requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. Because the definition promulgated herein
is similar to the current working interpretation of ``disturb,'' this
rule is not expected to significantly affect energy supplies,
distribution, and use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Regulatory Planning and Review (E.O. 12866). This rule is a
significant regulatory action subject to review by the Office of
Management and Budget (OMB). OMB makes the final determination of
significance under Executive Order 12866.
a. The Service does not anticipate that this rule will have an
effect of $100 million or more on the economy. This
[[Page 31139]]
rule defines an existing statutory term in a manner largely consistent
with how it is currently interpreted by State and Federal agencies.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This rule
deals solely with governance of bald and golden eagle take in the
United States. No other Federal agency has any role in regulating bald
or golden eagle take. Although some other Federal agencies regulate
activities that impact wildlife (including eagles) and such impacts may
constitute take, the definition of ``disturb'' promulgated by this rule
is similar to existing operative interpretations of the term.
c. This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No entitlements, grants, user fees, or loan programs
are associated with the regulation of bald or golden eagle take.
d. This rule may raise novel legal or policy issues.
Regulatory Flexibility Act. The Department of the Interior
certifies that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 804(2).
Description of Small Entities Affected by the Rule. This rule
applies to any individual, government entity, or business entity that
undertakes or wishes to undertake any activity that may disturb bald or
golden eagles. It is not possible to define precisely or enumerate
these entities because of uncertainty concerning their plans for future
actions and incomplete scientific knowledge of which activities in
specific cases will disturb bald or golden eagles. Small entities that
are most likely to engage in activities that may disturb bald or golden
eagles include: Small businesses that are engaged in construction of
residential, industrial, and commercial developments; farms; small
timber companies; small mining operations; and small governments and
small organizations engaged in construction of utilities, recreational
areas, and other facilities. These may include tribal governments, town
and community governments, water districts, irrigation districts,
ports, parks and recreation districts, and others.
Expected Impact on Small Entities. The rule defines the term
``disturb,'' which is contained in the definition of ``take'' in the
Eagle Act. Thus, ``disturbance'' is already prohibited under the law.
This rule promulgates a definition that is consistent with the
Service's former interpretation of ``disturb'' for bald eagle
management under the Eagle Act, and thus does not further restrict
human activity. This codification of the Service's definition of
``disturb'' does not impose any new reporting, recordkeeping, or other
compliance costs on any small entities. Promulgation of the rule and
the accompanying Guidelines provides clear guidance to all parties that
engage in activities that could potentially disturb eagles.
Promulgation of the rule and Guidelines may decrease the costs of
complying with the Eagle Act by reducing uncertainty and enhancing
resolution of potential conflicts between human activities and eagles.
The decreased costs are expected to be minimal. Therefore, this rule
will not have a significant effect on small entities.
Unfunded Mandates Reform Act. In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1531 et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. This
rulemaking will not impose a cost of $100 million or more in any given
year on local or State government or private entities.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year; i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. Revisions to State
regulations are not required; codifying the definition of ``disturb''
under the Eagle Act does not require any future action by State or
local governments.
Takings (E.O. 12630). In accordance with Executive Order 12630, the
rule does not have significant takings implications. This is an
interpretive rule, defining the statutory term ``disturb'' under the
Eagle Act. The rule promulgates a definition of ``disturb'' that is
consistent with working definitions currently applied to private
property, and will be used in conjunction with Guidelines that provide
greater flexibility than existing guidelines used by the Service to
advise landowners of how to minimize disturbance to eagles. A takings
implication assessment is not required.
Federalism (E.O. 13132). In accordance with Executive Order 13132,
the rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment. This rule will not
interfere with States' ability to manage themselves or their funds.
Defining a term within the prohibitions of the Eagle Act will not
result in significant economic impacts because this definition is
consistent with the meaning of the term as currently interpreted by the
Service and the States. A Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988). In accordance with Executive
Order 12988, the Office of the Solicitor has determined that this rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of the Order.
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) and 512 DM 2, we have evaluated potential effects on federally
recognized Indian tribes and have determined that there are no
potential effects. This rule will not interfere with Tribes' ability to
manage themselves or their funds.
Paperwork Reduction Act. This rule does not contain information
collection requirements. An agency 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.
National Environmental Policy Act. The Service has prepared an
environmental assessment of this action, pursuant to the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.).
The Notice of Availability for the final environmental assessment is
published elsewhere in today's Federal Register.
List of Subjects in 50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
0
For the reasons described in the preamble, we amend subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 22--EAGLE PERMITS
0
1. The authority citation for part 22 continues to read as follows:
Authority: 16 U.S.C. 668a; 16 U.S.C. 703-712; 16 U.S.C. 1531-
1544.
0
2. Section 22.3 is amended by revising the heading and introductory
paragraph and adding the definition for ``disturb'' in alphabetical
order to read as follows:
[[Page 31140]]
Sec. 22.3 Definitions.
In addition to definitions contained in part 10 of this subchapter,
the following definitions apply within this part 22:
* * * * *
Disturb means to agitate or bother a bald or golden eagle to a
degree that causes, or is likely to cause, based on the best scientific
information available, (1) injury to an eagle, (2) a decrease in its
productivity, by substantially interfering with normal breeding,
feeding, or sheltering behavior, or (3) nest abandonment, by
substantially interfering with normal breeding, feeding, or sheltering
behavior.
* * * * *
Dated: May 23, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-2694 Filed 6-4-07; 8:45 am]
BILLING CODE 4310-55-P
