The finalization of this proposed rule would remove all protections currently provided to the peregrine falcon under the Endangered Species Act (ESA). However, section 4(g)(1) of the ESA requires that the Secretary "implement a system in cooperation with the States to monitor effectively for not less than five years the status of all species which have recovered" and no longer require the protection of the Act. This provision allows the development of a program(s) to detect the inability of the species to sustain itself without the protective measures afforded by the Act. If during this monitoring period the species is not maintaining its recovered status, the species could be relisted under the ESA.

For the peregrine, this will include working with all of the seven Service regions, recovery teams, working groups, State resource agencies and interested scientific organizations to develop and implement an effective five year monitoring program. Specific sites or areas that are representative of the species’ status throughout its range will be targeted for systematic monitoring. The Service will also use information from other study areas where appropriate date are available. The monitoring program for the peregrine will include the following minimum measures: annual occupancy surveys; the number of young produced (productivity); monitoring contaminant levels; and monitoring egg shell thickness. If take for falconry is authorized under the Migratory Bird Treaty Act, the Service will closely monitor the number of birds taken to ensure that the level of take is not detrimental to the long term health of the species.

At the end of the five year monitoring period the Service will review the available monitoring data to determine whether relisting, continuation of the monitoring program or termination of the program is appropriate.

The finalization of the proposed delisting of the peregrine falcon will not affect the protection provided to the species by the Migratory Bird Treaty Act of 1918 (MBTA). The MBTA is the domestic law that affirms, or implements, the United States’ commitment to four international conventions with Canada, Japan, Mexico and Russia for the protection of shared migratory bird resources.

The MBTA governs the taking, killing, possession, transportation, and importation of migratory birds, their eggs, parts, and nests. The take of all migratory birds, including peregrine falcons, is governed by the MBTA’s regulation of taking migratory birds for educational, scientific, and recreational purposes and requiring harvest to be limited to levels that prevent overutilization. Section 704 of the Migratory Bird Treaty Act states that the Secretary of the Interior is authorized and directed to determine if, and by what means, the take of migratory birds should be allowed and to adopt suitable regulations permitting and governing take. The Secretary in adopting regulations, is to consider such factors as distribution and abundance to ensure that take is compatible with the protection of the species.

The MBTA prohibits the take, possession, import, export, transport, selling, purchase, barter, or offering for sale, purchase or barter, any migratory bird, their eggs, parts, and nests, except as authorized under a valid permit (50 CFR 21.11). Certain exceptions apply to employees of the Department of the Interior to enforce the MBTA and to employees of Federal agencies, State game departments, municipal game farms or parks, and public museums, public zoological parks, accredited institutional members of the American Association of Zoological Parks and Aquariums (now called the American Zoo and Aquarium Association) and public scientific or educational institutions.

The MBTA regulations allow for the taking and use of raptors for falconry purposes and for propagation purposes pursuant to State and Federal permits (50 CFR 21.28 through 21.30). Certain criteria must be met prior to issuance of these permits, including a requirement that the issuance will not threaten a wildlife population (50 CFR 13.21(b)(4)). In the event the peregrine falcon is delisted under the ESA, take for falconry and propagation can be permitted. Prior to permitting the take of peregrine falcons for falconry and raptor propagation under the MBTA, the Service will develop specific biological criteria to govern the taking. The criteria will be structured to ensure that the taking does not negatively impact wild populations, particularly those in need of continued protection to allow further recovery. The criteria will apply to all current and future falconry and raptor propagation permit holders.

The MBTA and its implementing regulations provide ample authority to consider the conservation of peregrine falcons and protect against excessive take in the event ESA protection is removed. Protective measures could be expanded, if necessary, by promulgation of an additional regulation under MBTA.