[Federal Register: October 27, 2003 (Volume 68, Number 207)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 17, 21 and 22
Migratory Bird Permits; Regulations Governing Rehabilitation
Activities and Permit Exceptions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: This regulation creates a permit category specifically to
authorize migratory bird rehabilitation. Migratory bird rehabilitation
is the practice of caring for sick, injured, or orphaned migratory
birds with the goal of releasing them back to the wild. In addition to
establishing this new permit category, this regulation creates two
exceptions to migratory bird permit requirements: For public officials
responsible for tracking infectious diseases, and for veterinarians who
receive injured or sick migratory birds.
EFFECTIVE DATE: This rule is effective November 26, 2003.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North
Fairfax Drive, Suite 400, Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service; 703/358-
The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.)
prohibits possession of any bird protected by treaties between the U.S.
and Canada, Mexico, Japan, and Russia. Birds covered by the Act are
referred to as ``migratory birds.'' Prior to this rulemaking, persons
engaged in providing treatment to sick, injured, or orphaned migratory
birds had to obtain a special purpose permit from the U.S. Fish and
Wildlife Service under 50 CFR 21.27. The special purpose permit
category is used to authorize activities not specifically covered by
other existing types of permits.
Currently, approximately 2,500 special purpose permits for
migratory bird rehabilitation purposes are active nationwide,
representing almost half the approximately 5,500 currently active
special purpose permits. The permits were tailored to address migratory
bird rehabilitation activities by means of Standard Conditions attached
to every permit. Those Standard Conditions are the basis of the
regulatory framework established by this rulemaking, which creates a
new permit category specifically for rehabilitation of migratory birds.
The rule addresses rehabilitation of threatened and endangered
migratory bird species and amends 50 CFR 17 (Endangered and Threatened
Wildlife) to exempt persons who obtain a rehabilitation permit from
having to obtain an additional permit under part 17 to care for
threatened and endangered migratory bird species. Accordingly, the rule
contains numerous provisions addressing rehabilitation of threatened
and endangered migratory bird species, including additional
requirements to notify and coordinate with the Service.
New Permit Exceptions
This rule also adds a new permit exception to 50 CFR 21.12 to allow
Federal, State, and local wildlife officials, land managers, and public
health officials responsible for monitoring public health threats to
collect, possess, transport, and dispose of sick or dead migratory
birds or their parts for analysis to confirm the presence or absence of
infectious disease such as West Nile virus and botulism. The exception
does not apply to healthy birds, or where circumstances indicate that
the death, injury, or disability of a bird was caused by factors other
than infectious disease. This permit exception will facilitate timely
response to public health concerns and outbreaks of avian infectious
The rule also provides an exemption to the permit requirements of
50 CFR part 17 and 50 CFR part 21 for veterinarians to temporarily hold
and treat listed migratory bird species.
Proposed rule and comments received. On December 6, 2001 (66 FR
63349), we proposed a rule establishing a permit category specifically
governing the rehabilitation of migratory birds to replace our system
of issuing permits for migratory bird rehabilitation under the
miscellaneous Special Purpose permit category authorized by 50 CFR
21.27. We received 199 comments on the proposed rule. Of those, 60 were
comments, most of which were submitted by individuals who were not
rehabilitators. Of the remaining 139 comments, 123 were from
rehabilitators; 10 were from State agencies; and 6 were from
The following preamble text discusses the substantive comments
received and provides our responses to those comments. Additionally, it
provides an explanation of significant changes from the proposed rule.
We do not address the comments that were favorable and contained no
recommendations for revisions. Comments are organized by topic. The
citations in the headings correspond to provisions within the Final
Revisions to 50 CFR part 17: Comment: The rulemaking contains
provisions that revise Sec. 17.21 to exempt permitted migratory bird
rehabilitators from having to obtain an additional permit under 50 CFR
17, which governs federally listed threatened and endangered species.
Yet the word ``endangered'' is not accompanied by the word
``threatened.'' Do those provisions apply to species that are
threatened, as well as to those that are endangered?
Service response: The rule addresses both threatened and endangered
species. Within existing regulations, Sec. 17.21 addresses endangered
species, specifically, while Sec. 17.31 addresses threatened species.
However, by reference, most of Sec. 17.21 does apply to threatened, as
well as endangered, species because the regulations at Sec. 17.31
state: ``Except as provided in subpart A of this part, or in a permit
issued under this subpart, all of the provisions of Sec. 17.21 shall
apply to threatened wildlife, except Sec. 17.21(c)(5)'' [italics added
here for emphasis]. Thus, in order to exempt rehabilitators from the
requirement to obtain a separate permit under part 17 to rehabilitate
both endangered and threatened species, this rule needs only to amend
the sections of part 17 that address endangered species (Sec. 17.21),
and not also Sec. 17.31, which addresses threatened species.
Scope of Regulations. (Sec. 21.2): The proposed rule contained
revisions to Sec. 21.2 in order to allow the new permit regulation to
cover rehabilitation of eagles as well as other migratory birds. This
was necessary because, under current regulations, permits authorizing
activities involving eagles are covered under separate regulations at
part 22, rather than part 21, which covers permits for all other
migratory birds. Eagles have their own permit regulations because they
are protected not only by the MBTA, but also by the Bald and Golden
Eagle Protection Act (BGEPA), which contains different, and in some
respects more protective, language than the MBTA. This final rule
revises the proposed Sec. 21.2 language in order to clarify that the
migratory bird permit exemptions at Sec. 21.12(a), (c), and (d) also
apply to eagles.
This final rule also introduces a minor revision to part 22 (eagle
permits). The revision to Sec. 22.11 accomplishes the same purpose as
the changes to Sec. 21.2, and was necessary to bring part 21
(migratory bird permits) and part 22 into agreement. Prior to this
rulemaking, Sec. 22.11 provided that certain actions prohibited by the
BGEPA may be permitted only under part 22, part 13, and/or Sec. 21.22
(banding or marking permits). Thus, the only permit regulations within
part 21 that applied to eagles were regulations pertaining to banding
and marking permits. The new Sec. 22.11 language extends the
application of part 21 to eagles, by providing that actions prohibited
under the BGEPA may be permitted by part 22, part 13, and/or part 21,
as provided by Sec. 21.2.
Permit exemption for public health officials. Sec. 21.12(c): The
Service has revised this provision for the final rule by adding
employees of land management agencies to the list of exempted personnel
who may collect infected birds without a permit. We made this revision
because of the increasing presence of West Nile virus nationwide, which
has been accompanied by an increased need for land managers, such as
the National Park Service, to monitor the spread of the virus in avian
populations on public lands.
Comment: The word ``toxins'' should be changed to ``causes'' to
allow public health officials to pick up birds injured by natural
Service response: Replacing the word ``toxins'' with ``causes''
would create a different result from what we intended. This provision
was not meant to allow public health officials to collect birds injured
by natural causes or accidents. Rather it is intended to cover only
situations where birds are suspected to have been stricken by
infectious diseases (including those caused by natural toxins). The
final rule continues to provide that public health officials acting
without a permit would not be authorized to collect and possess birds
that appear to have been injured as the result of anything but
infectious diseases or natural toxins. (A different provision within
the new permit regulation authorizes any person to pick up an injured
bird in order to immediately take it to a permitted migratory bird
Comment: Persons exempt from migratory bird permit requirements by
Sec. 21.12 should still have to adhere to some facility and husbandry
Service response: As part of a separate rulemaking, we intend to
propose language that addresses Sec. 21.12 permit exemptions and
establishes baseline facility and husbandry requirements for those
entities exempted under Sec. 21.12.
Comment: Public health officials will not adequately safeguard the
birds, because they won't be able to recognize the differences between
public health threats and other conditions that do not affect public
health. Rehabilitators should accompany them. Birds may be
unnecessarily killed. The regulations need to include provisions
addressing the care of these birds after they are collected, as well as
a requirement to notify a permitted rehabilitator, and recordkeeping
Service response: Rehabilitators are free to volunteer their
services to accompany such public health officials. However, whether or
not rehabilitators are present, these officials need to be able to pick
up birds that may be evidence of a high risk to public health.
Furthermore, the majority of these birds will already be dead or
mortally ill. We do not agree that it would be in the best interest of
the overall protection of migratory birds, or that it will enhance
public perception of the field of migratory bird rehabilitation, to
impose onerous recordkeeping requirements on persons acting to protect
public health in situations where most birds are dead or doomed.
Permit exemption for veterinarians Sec. 21.12(d): Comment:
Veterinarians are not usually trained to treat birds. And wild birds
may be given less priority since they are not associated with paying
customers. Veterinarians should be required to get permits.
Service response: The purpose of this exemption is to make legal a
practice that is common today--that is, the situation where a person
finds an injured bird, and not knowing what else to do, brings it to a
veterinarian. Many veterinarians do not want to turn away an injured
creature, particularly if it means that it may not survive long enough
to be taken to a permitted migratory bird rehabilitator. Right now, if
the veterinarian tries to stabilize the bird, he or she is violating
the law. The Service believes that veterinarians should not be forced
to make the choice between providing emergency care to a stricken bird
and breaking the law. Furthermore, we believe that this provision will
foster greater awareness
within the veterinary community of legal status and medical needs of
migratory birds, and will build relationships and strengthen
communication between veterinarians and migratory bird rehabilitators,
resulting in an overall net benefit to migratory birds.
Comment: The veterinary permit exemption is not needed because the
new permit regulation's ``Good Samaritan clause'' at Sec. 21.31(a)
should cover veterinarians already.
Service response: The good Samaritan clause does not authorize
persons to retain birds or to provide stabilizing medical treatment or
euthanasia. Under the Good Samaritan clause, a person who finds and
takes temporary possession of an injured bird is required to contact a
permitted rehabilitator, and transfer the bird to them immediately.
Comment: Veterinarians should be required to contact the Service
for one of the following: a referral to a permitted migratory bird
rehabilitator, permission to stabilize for transfer within 24 hours, or
permission to euthanize.
Service response: The rule states that veterinarians must transfer
any bird they do not euthanize to a permitted migratory bird
rehabilitator. Veterinarians may contact the Service if they need to
find a local rehabilitator, but we do not see what purpose it would
serve to require them to contact us for a referral, when in some cases,
they will already have such information. Second, the rule only provides
authority for necessary stabilization of the bird's condition, which we
would certainly grant, should the vet call us, so we do not see what
purpose it would serve to require the veterinarian to call us for
permission. Finally, euthanasia is a means to stop the suffering of the
bird. To require a veterinarian to call the Service could unduly
prolong such suffering, so the rule does not require this either.
Comment: Veterinarians should not have to call U.S. Fish and
Wildlife Service's Ecological Services personnel when they receive an
injured federally listed migratory bird species. Rather, they should
have to call a permitted rehabilitator.
Service response: The rule requires veterinarians to contact the
Service for the same reason that it requires rehabilitators to contact
the Service: specialized facilities exist to care for some listed
species, and in those cases, it could be critical that the bird be
transferred to the designated facility as soon as possible.
Comment: Why is the veterinarian's requirement to contact the
Service when they receive a listed species different than the
requirement for rehabilitators? The rule requires veterinarians to
contact the Ecological Services Office, whereas rehabilitators are
required to contact their issuing Migratory Bird Permit Office?
Service response: Veterinarians are not permit holders, and
therefore have no special relationship with the Service. It is just as
easy for them to keep the telephone number of the local Ecological
Services Office handy (which is the decisionmaking body in this
scenario) as it is for them to contact the Regional Migratory Bird
Permit Office. In contrast, permitted rehabilitators established a
relationship with the Service's Migratory Bird Permit Office (the
issuing office) when they applied for and were issued a permit.
Contacting the issuing office is easier for them because the telephone
number is included with their permit. The issuing office can then
contact the Ecological Services Office. In addition, we hope that this
rule will foster a new relationship between veterinarians and the
Service in relation to migratory birds. In the case of endangered
species, it makes sense that that relationship be with Ecological
Services, the Service's office that handles listed species.
Comment: Veterinarians should not have to keep records, except for
the birds they euthanize, since the rest are transferred to permittees
who keep the records.
Service response: We agree with this comment. The rule has been
revised to require veterinarians to keep records of only those birds
that they euthanize or which otherwise die in their care.
Comment: The phrase ``necessary treatment'' is not well-defined.
``As soon as practicable'' is too ambiguous. Veterinarians should have
to apply for a permit if they wish to do more. Veterinarians should be
required to contact rehabilitators before performing any extended
Service response: We have revised the final rule to clarify that,
absent a permit, veterinarians may only stabilize or euthanize birds,
and we have established a time limit of 24 hours in which veterinarians
may keep birds after stabilization without contacting the permit office
for permission to retain the bird.
Comment: The rule should require veterinarians to keep birds
separated from other animals and away from noise and disturbance.
Service response: While we agree with the recommendation to
separate birds from noise and other animals, many vets may not be able
to provide such an ideal situation, yet may still be able to aid
injured birds that otherwise might not be saved.
Comment: Veterinarians should be required to record the name and
contact information for the person who delivered the bird, so that
fledglings can be reunited with their parents.
Service response: Under the rule, veterinarians are not authorized
to accept healthy fledglings. The rule exempts them from the permit
requirement only in cases of sick or injured birds.
Comment: Many veterinarians are not trustworthy; some will use
birds to experiment on. How will they be monitored?
Service response: We do not agree that many veterinarians are
likely to experiment on migratory birds.
Comment: Veterinarians should not be exempt from permitting
requirements. They do far too much damage (stress issues, imprinting,
medical supply issues, surgical issues, caging concerns, etc.).
Service response: The rule requires veterinarians to transfer birds
to rehabilitators within 24 hours after the bird is stabilized. Many of
the concerns noted by the commenter will not arise under this scenario
(surgical issues, imprinting). While there is some risk that
veterinarians will not provide adequate care, we believe that the
majority will, and that the ability of veterinarians to accept birds
from the public and stabilize them will result in an overall benefit to
``Good Samaritan clause.'' Sec. 21.31(a). Comment: This provision
should be revised to require people who pick up birds to transfer them
to a permitted rehabilitator within 24 hours, not just ``immediately''
as the proposed rule says.
Service response: We believe that the language of the proposed rule
will better ensure that Good Samaritans do not delay in finding a
permitted rehabilitator to accept the bird.
General permit provisions Sec. 21.31(b). Comment: The rule should
say that rehabilitators provide ``rehabilitative services,'' not
``medical care.'' Only veterinarians may provide medical care, under
Service response: We have revised the rule to state that
rehabilitators are authorized to provide ``rehabilitative care.''
Comment: The 24-hour limit within which rehabilitators are required
to transfer species for which they do not have authorization is too
short. Sometimes a qualified rehabilitator is not easily accessible or
readily available. Also, in some situations it is
better for the bird not to be moved so soon.
Service response: We have revised the rule to state that the bird
must be transferred within 48 hours. The rule also now provides that
the permittee must contact the issuing office for authorization to
retain the bird until it can be transferred, if a rehabilitator
authorized to receive the bird is not available within 48 hours.
Comment: Rehabilitators should be able to use their birds in
Service response: The purpose of the rehabilitation permit is to
rehabilitate birds for release to the wild. Birds held under a
rehabilitation permit can be used for education only if transferred to
an educational permit--after being deemed nonreleasable by a
veterinarian. Birds undergoing rehabilitative care that are exposed to
humans in educational programs could become imprinted, compromising
successful reestablishment in the wild. (Within the context of this
rulemaking, the word imprinted means habituated to humans). Even if not
imprinted, the stress from this type of exposure can inhibit the
rehabilitation of the bird.
Application process and fee Sec. 21.31(c). Comment: The rule does
not say what form the applicant must use to apply for a rehabilitation
Service response: The rule has been revised to state that the
applicant must use Service Form 3-200-10b. We removed the provisions
within this section that specified what the application must include,
since all application requirements are specified on the application
form. Notice is published in the Federal Register every 3 years
alerting the public of their opportunity to review and comment on
Service permit application forms and other forms used to collect
information from the public. The current Rehabilitation permit
application form was open for public comment on September 6, 2000 (65
FR 54060) and March 8, 2001 (66 FR 13947), and will be open for review
and comment again in 2003 or 2004.
Comment: The applicant must submit a letter from a permitted
rehabilitator stating that the rehabilitator will provide assistance to
the applicant, but the rule does not specify what kind of assistance is
envisioned. Is it for mentoring purposes for new rehabilitators, or is
it supposed to ensure that there is a ``back-up'' rehabilitator
available in case of illness or absence? If the former, the requirement
to have a relationship with another permitted rehabilitator seems to be
geared towards novices. Persons renewing their permits should not need
to show this.
Service response: The purpose of this requirement is primarily for
mentoring purposes for new applicants. A rehabilitator renewing a
permit does not need to resubmit the same information he or she
provided in the original permit application. Instead, he or she will
use a Service permit renewal form, which only asks for any information
that has changed since the applicant last applied.
Comment: The requirement to have another permitted rehabilitator
vouch for the applicant's experience is unnecessarily burdensome and
Service response: The letter serves to show that the applicant has
had experience rehabilitating birds. We do not believe that asking for
a showing of experience implies distrust. It is merely a way to
distinguish those applicants who have experience from those who do not.
We also do not agree that this requirement is overly burdensome. The
letter need not be lengthy. Furthermore, this requirement is not new;
it has been a requirement on the Special Purpose--Rehabilitation permit
application form for over a decade.
Comment: As part of the application requirements, the cooperating
veterinarian should not be required to state knowledge of the training
and qualifications of the applicant.
Service response: The application does not require such a
statement; rather, it recommends that the veterinarian provide such
knowledge if he or she has it. However, we will reconsider the need for
this language when the application form is eligible for revision.
Comment: People should not be required to have facilities in place
before obtaining their permit. It is not reasonable to ask the
applicant to build expensive facilities without knowing whether the
permit will be granted.
Service response: Having adequate facilities in place is a standard
requirement for all permits authorizing possession of live wildlife. A
permit can be issued to authorize rehabilitation of types of birds that
do not require extensive or expensive facilities. Then, the permittee
can upgrade his or her facilities at any time after the permit is
issued to house more birds or different species. When such additions
are made, the issuing office will expand the authorization on the
permit, assuming the other criteria are also met (i.e., the applicant
must also have the required experience to rehabilitate the new species
he or she wishes to add to the permit).
Comment: The permit application fee should be waived because of the
vital public service rehabilitators perform. Rehabilitators voluntarily
do the Service's work for them, and are funded through donations and
community support. Some may not be able to afford to pay the fee.
Service response: Although we believe the work of rehabilitators is
very valuable, it is not a Service responsibility. None of the
applicable laws or treaties make provision for care of individual
birds, nor are funds appropriated by Congress for such a purpose.
Rather, we are charged with and receive funding for implementing the
various Migratory Bird Treaties and the Migratory Bird Treaty Act,
which prohibit virtually any human contact with migratory birds unless
authorized by regulations we issue, or by a permit from us. The permit
program has significant costs, and we are directed by Congress and the
Office of Management and Budget to charge a fee for providing permits,
to recover at least some of these costs. Because of this, we do not
receive appropriated funding sufficient to cover all costs of issuing
permits, and must depend upon application fee revenues to make up the
balance. In this particular case, the permit application fee is $5 or
$10 dollars annually, which is not a significant financial burden upon
any one applicant.
What criteria will the Service consider before issuing a permit?
Sec. 21.31(d). Comment: What criteria will the Service use to decide
what species a person will be qualified to rehabilitate? The rule only
says he or she must have ``adequate experience.'' What is ``adequate
Service response: We were reluctant to define exactly what type and
amount of experience will be considered adequate, because of the
different types of experiences that a person could have that might
contribute to his or her ability to rehabilitate birds. An applicant
who has cared for hundreds of uninjured orphaned nestlings, but who has
never had any hands-on experience with injured birds, will not be
qualified for a permit that authorizes rehabilitation of injured and
sick birds. Depending on the extent of the applicant's experience
working with baby birds, he or she may be qualified for a permit that
is restricted to caring for orphaned nestlings. Similarly, hands-on
experience working with injured and sick songbirds will not be
sufficient to qualify an applicant for a permit to rehabilitate
eagles--though it may be enough to enable the applicant to obtain a
permit to work with passerines. However, because numerous
commenters were uncomfortable without some guidance as to what we will
consider ``adequate experience,'' we revised this section to require at
least 100 hours of hands-on experience with the types of species (not
each and every specific species) that the applicant intends to
rehabilitate, or ``comparable experience.'' Applicants' experience with
migratory bird rehabilitation must span at least 1 year. This indicates
an enduring interest in the field, as opposed to a temporary
enthusiasm. Up to 20 hours of the time requirement may be fulfilled
through attending migratory bird rehabilitation seminars and training
Comment: There should be a formal examination or review process to
ensure that applicants have the necessary knowledge to treat migratory
birds. Or the Service should set up a training and accreditation
program to train prospective rehabilitators.
Service response: While a written test or accreditation program may
have value, our priority is that the applicant have hands-on experience
in migratory bird rehabilitation. We believe that the application
requirements and issuance criteria of this rule will adequately ensure
that permittees are qualified.
Comment: People should not be required to have experience before
getting their own rehabilitation permit. It is too hard for them to get
that experience without first having a permit. Having a permitted
rehabilitator with little or no experience is better than having no
rehabilitator at all, as would be the case in some areas. In order to
gain the prior experience, the Service could institute a ``novice''
class of rehabilitators who would be more tightly regulated. They could
gain their experience during the time spent in the novice class. Also,
applicants may not want to admit to experience acquired without a
Service response: We do not believe it is advisable to allow people
with little or no experience to handle migratory birds, which are wild
animals and have very particular needs. We do not think it would be
safe for the people or the birds. Providing safe and effective
rehabilitative care for sick and injured migratory birds requires
knowledge that is difficult to impossible to acquire without
rehabilitation experience. To gain experience, a person dedicated to
becoming a migratory bird rehabilitator can volunteer as a subpermittee
for a federally permitted rehabilitator. Most rehabilitators can always
use the assistance of capable individuals who are willing to learn.
Comment: The regulations should provide for a licensed sponsor who
could determine after a year if the subpermittee was ready to receive
Service response: We feel that this rule accomplishes the same
objectives as a formal 1-year requirement for a sponsor, but with more
flexibility. We expect most applicants to gain experience by working
with permittees as subpermittees, and we ask the permit applicant to
include a letter of reference from a permitted rehabilitator who has
knowledge of the applicant's experience.
Comment: The rule should require permittees to have at least 6
months of experience in rehabilitation, a portion of which must occur
in the spring.
Service response: The rule has been revised to require that an
applicant have experience spanning an entire year, in order to qualify
for a permit. The purpose of this provision is primarily to ensure that
the applicant's interest is more than fleeting, but it will also make
it more likely that successful applicants will have rehabilitation
experience during nesting season.
Comment: People should not have to show prior experience with every
species they wish to rehabilitate, since more than 800 species of birds
are protected by the MBTA.
Service response: The rule requires experience with the types of
species you intend to rehabilitate, not with each and every species.
For example, if you have adequate experience working with red-tailed
hawks, goshawks, and barred owls, we may issue you a permit authorizing
rehabilitation of raptors, even though you have never handled Cooper's
Hawks, Harris's Hawks or American Kestrels. Of course, issuance of the
permit would also be contingent on whether you have adequate facilities
for rehabilitating raptors.
Comment: The rule states that the Service will consider how much
experience a person has rehabilitating species that are federally
listed as threatened or endangered. This language should be removed
because most people will have no experience with listed species, since
these species are rare.
Service response: We agree with this comment. Although some listed
species may be locally abundant where they do occur, most are rarely
encountered. Furthermore, rehabilitative treatment for most listed
species will not differ categorically from treatment for unlisted
birds. The language of the rule has been revised to reflect that
permittees will be authorized to accept listed species with the
condition that they immediately contact the Service to ascertain
whether the Service will require the permittee to transfer the bird to
a designated special facility.
Comment: The requirement to have a working relationship with a
veterinarian should not apply to rehabilitators who are veterinarians
or ``other qualified biological specialists'' such as ornithologists or
Service response: We agree that an applicant need not have an
agreement with a licensed veterinarian if the applicant is a licensed
veterinarian. The rule has been revised to reflect this. However, we do
not agree that an advanced degree in biology or ornithology includes
the type of medical education that can substitute for veterinary
Comment: Some rehabilitators do not have access to a veterinarian.
They should be able to send birds to rehabilitators who have such a
Service response: A veterinarian must be available to treat birds
that need medical care. To involve another rehabilitator in the
transfer to the veterinarian is an unnecessary burden on the second
rehabilitator and is not in the best interest of the bird, which may
need more immediate medical attention. We believe, and the rule
reflects, that the originating rehabilitator should establish his or
her own agreement with the veterinarian without going through another
rehabilitator, particularly if the veterinarian will wind up treating
the bird anyway.
Comment: The rule should state that the veterinarians will provide
``medical care,'' not ``veterinary assistance.'' Also, the rule does
not define ``qualified'' veterinarian. It should be changed to
Service response: We agree with these comments and have revised the
Comment: The rule should contain provisions addressing what happens
if the relationship with the veterinarian is terminated. Commenters
make no suggestion of what kind of provisions would be appropriate. The
rule should state that the rehabilitator must maintain a working
relationship with a veterinarian throughout the tenure of the permit.
Service response: We agree with this comment and have revised the
rule to add a condition within Sec. 21.31(e) that the permittee must
maintain a working relationship with a licensed veterinarian.
Comment: Veterinarians could encounter liability issues if they
commit on paper to providing assistance.
Service response: No veterinarian is required to enter into such an
agreement. None need participate in
migratory bird rehabilitation if it makes him or her uncomfortable.
Also, the veterinary relationship has been a requirement of the
rehabilitation permit for many years, and we have not heard any
concerns from veterinarians regarding this provision.
Comment: The rule should state that an applicant must have ``State
authorization'' rather than a State ``permit or license'' if required
by the State. Some States require authorization, but it is not in the
form of either a permit or a license.
Service response: The rule has been revised to include ``other
Comment: The rule does not say what happens when the rehabilitator
loses his or her State permit.
Service response: Section 21.31(g) has been revised to further
clarify that the Federal permit is not valid unless the permittee
possesses and adheres to the terms of his or her State authorization.
Facilities Sec. 21.31(e)(1). Comment: The Service should not use
the Minimum Standards for Wildlife Rehabilitation (MSWR) as guidelines
because the MSWR includes references to requirements that are outside
the purview of the Service.
Service response: The rule has been revised to clarify that it
refers only to the suggested caging dimensions within the MSWR, and not
to the other topics within the MSWR.
Comment: The Service should not require rehabilitators to conform
to MSWR recommendations because they are too restrictive, and could be
Service response: The rule does not require anyone to conform to
the MSWR; rather it states that the Service will use the MSWR as
guidelines in evaluating applicants' facilities. This provision
reflects the Service's current policy. Use of the Minimum Standards
provides the permit issuing office with preliminary parameters to use
as guidelines for judging what constitutes suitable avian housing. The
use of a common reference will foster consistent treatment for
Comment: The Service may be too rigid about enforcement of the MSWR
Service response: We have revised the language of this section to
state that the Service will authorize variation from the standards
where doing so is reasonable and necessary to accommodate a particular
rehabilitator's circumstances, unless a determination is made that such
variation will jeopardize migratory birds. The revised language states
more strongly that the Service will apply flexibility in our use of the
Minimum Standards. We will use the Minimum Standards as a ``starting
point'' for evaluating what are acceptable cage sizes, without forcing
rehabilitators to have cages with the published dimensions. The rule
leaves room for variation, while providing the regulated community with
basic parameters that the Service considers acceptable.
Comment: The Service's reliance on the MSWR disenfranchises those
rehabilitators who do not belong to IWRC and NWRA and those who are
unaware of the existence of the standards document.
Service response: We do not agree that the proposal would
disenfranchise nonmembers of the IWRC/NWRA, since that MSWR document is
widely available to members and nonmembers alike, and we have been
using it and referencing it for years in the Standard Conditions for
Comment: The rule should not reference an external document (MSWR),
because it is privately published and subject to change. Which edition
does the Service mean to use?
Service response: The rule has been revised to state that it refers
to the 2000 (3rd Edition) of the MSWR.
Comment: The Service should replace the use of the MSWR as
guidelines with the exact language on Page 20, paragraph 2, of the
MSWR. This would give the applicant more flexibility, but ensure high
Service response: The language to which the commenter refers does
not include any mention of actual cage dimensions. We need established
general parameters for what the Service will consider acceptable cage
dimensions. Such parameters give the Service something consistent to
work with in assessing applicants' facilities, as well as providing
guidance for applicants to use in planning their facilities.
Comment: The rule makes no provision for flight caging. Birds need
to do more than open their wings to be conditioned for release.
Service response: Cages used to condition birds for release are
addressed in the MSWR as part of the caging dimensions that the Service
will use as guidelines.
Comment: No mention is made of overcrowding. No mention is made of
providing clean, fresh water and food. No mention is made of the need
to safely clean the cage.
Service response: We have added the following conditions to the
rule: ``Birds must not be overcrowded'' and ``You must provide the
birds in your care with a diet that is appropriate and nutritionally
approximates the natural diet consumed by the species in the wild, with
consideration for the age and health of the individual bird.'' We also
replaced the requirement to keep the floor clean and well-drained with
the following condition: ``Enclosures must be kept clean, well-
ventilated, and hygienic.''
Comment: The rule should require that birds not be in sight of
predators, including predatory birds. Also, the rule should require
facilities to have quarantine areas to protect against the spread of
Service response: While we view these suggestions as good advice,
we consider them beyond the threshold of what ought to be mandated by
Comment: The caging dimensions of the MSWR are too ``ambitious''
for Unlimited Activity and Limited Activity birds, more than a
reasonable minimum. Some reduction in overall sizes should be
Service response: We realize that some recommendations within the
MSWR are viewed by some rehabilitators to be ambitious or optimum
rather than minimal, and we agree that in many instances, some
reduction in cage size will be acceptable. The rule provides for
variation from the suggested dimensions of the MSWR where such
variation will not jeopardize migratory birds.
Comment: The MSWR recommends too much water depth in pools for
wading birds. Two feet of water can be a struggle for a recuperating
pelican. It could also result in hypothermia. These minimum depths
should either be reduced or dropped entirely.
Service Response: We appreciate observations like this because they
can help us to evaluate facilities. Common sense information from
applicants with experience is valuable and will help us to understand
why variation from the standards may not jeopardize birds.
Comment: The MSWR recommends wood as a caging material. However,
this is a bad material to use in some areas, such as Florida, because
it rapidly rots, fails to withstand tropical storms, and blocks healthy
air flow in humid environments. Also, soft netting can entangle birds
and interfere with air circulation.
Service Response: The rule does not state what specific materials
must be used for caging or netting, nor does it reference the MSWR's
recommendations for materials.
Comment: The facilities criteria in the rule give no guidance to
permit applicants and leave too much to the discretion of the Service.
Service Response: Most people who commented on the facilities
standards of the rule were not concerned that too much discretion was
left to the Service. Rather, many commenters felt that the standards
will not allow for enough flexibility. As written, the rule reflects
the Service's intent to be as specific as possible, while at the same
time ensuring we remain flexible in authorizing reasonable variation
from the specifics.
Comment: The requirement that caging be large enough for the birds
to fully extend their wings does not make sense for facilities that are
used during the first stages of rehabilitation--when the birds'
movement is intentionally restricted.
Service Response: We deleted this provision from the final rule,
since cage dimensions are already addressed by reference to the MSWR,
which provide for the different types of cages recommended for
different stages of recovery.
Comment: The rule should not require permittees to dedicate one
cage to just one species. People need to be able to ``decorate'' cages
to suit different species. Will the Service have to approve every new
cage to house a different species?
Service Response: The rule does not require that cages be dedicated
to particular species. As long as the cage is adequate for any species
that will be housed in it, it is acceptable. The permit will authorize
categories of species, not individual species. Facilities generally can
be built to house types of species (e.g., large raptors, small
waterbirds), not individual species (e.g., Swainson's Hawk, American
Avocet). When rehabilitators receive species for which they do not have
adequate facilities, they must transfer the birds to rehabilitators
with such facilities.
Comment: The prohibition against displaying birds to the public is
unrealistic. Keeping the birds from hearing and seeing people (in
particular hearing people) can be difficult. Also, rehabilitation birds
are a good educational tool that generates public empathy and support
for the facility.
Service Response: The Service issues a permit to hold and use birds
for educational programs, but it is not the rehabilitation permit. The
purpose of the rehabilitation permit is to rehabilitate birds for
reintroduction to the wild. Proximity to people can cause stress that
impedes recovery, and exposure to human activity can habituate birds to
people to the degree that they lose natural instincts necessary to
survive in the wild. For those reasons, use of rehabilitation birds in
educational formats remains prohibited in the rule. It is possible to
insulate birds from the public. However, it is also true that some
birds enter rehabilitation facilities already somewhat habituated to
humans. The rule continues to provide that rehabilitation birds not be
exposed to the public or used in educational formats. However, in rare
cases, birds enter rehabilitation facilities already somewhat
habituated to humans. Accordingly, the language of the rule has been
revised to state that birds may not be displayed to the public ``unless
you use video equipment, barriers, or other methods to reduce noise and
exposure to humans to levels the birds would normally encounter in
their habitat.'' (emphasis added).
Comment: The rule should provide that facilities currently approved
under the existing Special Purpose Rehabilitation permit will not fall
out of compliance under the new rule.
Service Response: The final rule contains a ``grandfather clause,''
which states, in part, ``If your facilities have already been approved
on the basis of photographs and diagrams, and authorized under a valid
Sec. 21.27 special purpose permit, then they are preapproved to be
authorized under your new permit issued under this section, unless
those facilities have materially diminished in size or quality from
what was authorized when you last renewed your permit, or unless you
wish to expand the authorizations granted by your permit (e.g., the
number or types of birds you rehabilitate).''
Subpermittees Sec. 21.31(e)(3). Comment: The rule should not
authorize subpermittees, because their lack of experience results in
higher mortality rates and imprinting. People should be encouraged to
volunteer with permitted rehabilitators, but volunteers should not be
allowed to take birds home to facilities outside those of the
Service Response: Volunteers are often critical to migratory bird
rehabilitation. Few rehabilitators can afford to pay staff to do the
work that volunteers do. In addition to the valuable services
subpermittees provide to rehabilitators, the subpermittee system serves
as a training and recruitment program for bringing new rehabilitators
into the field. We do not believe that allowing subpermittees to take
birds to off-site facilities endangers migratory birds, because the
permittee is responsible for ensuring that subpermittees are qualified
to provide adequate care. Off-site subpermittee facilities must meet
the same standards as the permittee's facilities. For these reasons, we
believe that allowing subpermittees to take birds to authorized off-
site facilities ensures better care for migratory birds by increasing
the availability of round-the-clock care.
Comment: Subpermittees should not have to be 18 or older. Many
younger people can provide valuable services while gaining valuable
knowledge and experience.
Service Response: The rule requires that a person who will be
performing activities that require permit authorization in the absence
of the permittee or subpermittee must be a subpermittee, and it also
requires that subpermittees be 18 or older. However, minors would be
allowed to help in all other situations except those that involve
actions for which a permit is required (handling the birds, basically)
when the permittee or a subpermittee is not present. Since we would not
issue a rehabilitation permit to minors, we will not authorize minors
to perform activities that require a permit without supervision.
Comment: Subpermittees' names should be on file, but including all
their qualifications could be difficult for big facilities, where large
numbers of subpermittees change frequently.
Service Response: The application requirement to list the
qualifications of the subpermittees has been deleted from the rule.
However, this information is still requested on the permit application
form 3-200-10b. We intend to drop this requirement from the form when
our application forms are revised and reauthorized. Meanwhile, new
subpermittees need only be named in writing to the issuing office
without an accompanying description of their qualifications.
Comment: Large facilities should not have to immediately submit the
names of new subpermittees. This requirement is too burdensome with so
much turnover amongst volunteers at large facilities. Instead, there
should be a requirement to send in amendments every quarter listing the
Service Response: Not everyone who works under a rehabilitation
permit needs to be on file with the Service as a subpermittee under
that permit. Numerous people may be assisting at large rehabilitation
centers. However, only those who will be conducting activities that
require a permit in the absence of the permittee or a named
subpermittee must be on file with the permit office. For instance, a
facility may have 25 volunteers, but only four who conduct activities
that require permit authority when the permittee is
offsite or otherwise unavailable to oversee activities conducted under
his or her permit. In that case, only those four volunteers need to be
on file with the Service as subpermittees. The remaining 21 people do
not need to be named subpermittees as long as the permittee or one of
the four listed subpermittees is present when they conduct activities
that require permit authorization. We believe that, even for large
centers with high volunteer turnover, the need to update named
subpermittees will not be onerous, since not everyone assisting with
permitted activities is required to be on file with the Service.
Comment: This requirement to list subpermittees would be
particularly burdensome as applied to those who transport birds to and
from the facility. Transporters don't really have contact with the
birds anyway. Could they merely be listed with the rehabilitator's
records, and not with the permit office?
Service response: Many transporters have frequent contact with the
birds they pick up and deliver to rehabilitators, so we believe they
should be treated like other subpermittees.
Comment: The subpermittee system should be replaced by an
apprentice licensing program with mandatory training.
Service response: We believe the subpermittee requirements of the
rule, together with the oversight of permitted rehabilitators, will
provide sufficient training for persons entering the field of migratory
bird rehabilitation. This system has been in place for many years, with
Comment: The rule does not specify whether the subpermittee's
facilities must meet the same requirements as the permittee's
Service response: The rule has been revised to state that the
subpermittee's facilities must meet the same standards as the
Comment: Do a subpermittee's facilities really need to be approved
when it is just a shoe box for nestlings?
Service response: The Service does not need to see photographs and
diagrams of a shoe box. However, the address where any subpermittee
will be caring for nestlings outside of the permittee's premises must
be provided in writing to the permit office and authorized by the
permit office before any nestlings are transferred to the alternate
Comment: The rule does not state whether subpermittees are bound by
all the requirements of the regulation. Also, who is responsible to
supervise off-site activities of subpermittees?
Service response: The final rule states that ``As the primary
permittee, you are legally responsible for ensuring that your
subpermittees, staff, and volunteers adhere to the terms of your permit
when conducting migratory bird rehabilitation activities.''
Comment: Subpermittees who provide frequent or long-term care
offsite should be required to obtain their own permits.
Service response: We have considered mandating that permittees who
provide frequent and/or, long-term care off-site obtain their own
permits, but decline to do so because some people simply do not want to
be permittees but may be able to provide quality care for birds under
another person's permit. The rule requires the same standards for
subpermittee facilities, and because it requires the permittee to be
responsible for the subpermittee's rehabilitation activities, we
believe that permittees will keep sufficient oversight over
subpermittees to protect the birds under their care.
Imprinting Sec. 21.31(e)(4)(i). Comment: The provision requiring
imprinted birds to be turned over to the Service should be removed from
the rule. Sometimes rehabilitators receive birds that have already been
imprinted. And, some imprinting is likely to occur no matter what.
Service response: The rule has been revised to clarify that the
requirement to transfer imprinted birds to a third party applies only
to birds that have been imprinted while under the care of the
permittee. The permittee will be required to transfer any bird
imprinted under his or her care to another facility specified by the
Service. After no longer than 180 days, however, all surviving birds
that are nonreleasable, whether imprinted or not, must be transferred
to another permit (unless additional authorization is granted from the
permit office)--since the rehabilitation permit only authorizes
possession of birds undergoing rehabilitative care.
Comment: Turning birds over to the Government will result in
needless euthanasia. Rehabilitators will have to tell the public that
the birds were transferred and possibly euthanized.
Service response: In the rare situations when the Service has
removed imprinted birds from a permittee, we have placed the birds with
migratory bird education permit holders to use in educational programs.
Comment: Some degree of imprinting will not interfere with a bird's
ability to survive in the wild. If birds are too imprinted to survive
in the wild, they should be placed in licensed sanctuaries.
Service response: The intent of this provision is to require
rehabilitators to take precautions to prevent birds from becoming so
habituated to humans that they cannot survive in the wild. It is in the
best interest of migratory birds as a whole that they not be perceived
as pets by the public or treated as such by permittees. Therefore, the
rule requires that rehabilitators take precautions to avoid imprinting,
and provides that the Service may remove birds from the care of those
who do not do so.
Comment: The Service should not take imprinted birds away from
rehabilitators because the Government doesn't have good facilities for
Service response: We do not hold birds in these situations. We
place them with other permittees whom we have identified prior to the
Comment: The rule should require that all imprinted birds that are
not listed as threatened or endangered be euthanized.
Service response: We do not agree that all non-listed imprinted
birds should be euthanized. (See next comment.)
Comment: Imprinted birds should be allowed to be used for education
or for foster parenting.
Service response: Imprinted birds may be used for foster parenting
under the proposed rule--but the rule does not allow persons to use
birds they themselves have allowed to become imprinted. The Service
places imprinted birds with other permit holders for foster parenting
or educational use.
Release Sec. 21.31(e)(4)(ii) Comment: The 180-day limit for
keeping birds in rehabilitation without additional authorization is too
short. Many birds take over a year to be ready for release, plus it
must be done during an appropriate season. A specific limit is
arbitrary and not necessary. This decision should be left to the
Service response: Rarely do birds need to be kept longer than 180
days. If more time is needed for rehabilitation, or if a bird must be
held until the appropriate season for its release, the rule provides
that the permittee need only contact the permit office for
authorization. The instances where birds need longer than 180 days to
be readied for release are infrequent enough that we do not consider
this notification requirement to be burdensome. The longer birds remain
in rehabilitation, the greater the chance they will become habituated
to captivity. Moreover, without a limit, birds could be kept
Comment: The 180-day provision is good for experienced
less experienced rehabilitators should still be held to the 90-day
period with permission needed to extend it.
Service response: We do not agree that less experienced
rehabilitators should be allotted less time to treat and condition
birds for release.
Comment: The proposed rule says nothing about the need to release
birds as soon as possible. The 180-day period is too long. Birds will
become habituated to people and the conditions of rehabilitation
Service response: The final rule states that birds must be released
as soon as they are releasable (and seasonal conditions allow).
Therefore, the 180-day limit will apply only to those birds that are
not yet ready for release.
Comment: Rehabilitators should not need to get permission to keep
birds longer than 180 days for foster parenting.
Service response: The purpose of the rehabilitation permit is to
authorize possession of birds so that they may be provided the
rehabilitative care necessary to return them to the wild. If a bird is
not ready for release before the 180-day limit, but is still expected
to be releasable in the future, and is suitable for foster parenting,
it may be used for that purpose until released. If the rehabilitator's
veterinarian determines that a bird is permanently injured and
nonreleasable, the rehabilitator may submit a written request to
possess the bird for foster-parenting purposes. If the request is
justified and approved, the Regional permit office will amend the
rehabilitator's permit to reflect this authority.
Comment: The rule should include the guidelines for release that
are contained within the Minimum Standards for Wildlife Rehabilitation,
or it should provide some other guidance for when the bird is ready for
Service response: Generally, regulations should state what is
required, not what is recommended. In the interest of flexibility, the
rule does not establish regulatory requirements for release of birds.
There are simply too many variables. The Minimum Standards and other
publications of the rehabilitation community, as well as the guidance
provided by peers, can serve as valuable sources for determining
suitable conditions for release.
Comment: Rehabilitators should not have to coordinate with State
and local wildlife officials about where to release the birds. Most
local and State wildlife officials would not want to be consulted so
Service response: This was a recommendation in the proposed rule,
not a requirement. Since it was not a requirement, we have removed it
from the final rule.
Comment: State conservation agencies should be notified before
rehabilitators release listed species.
Service response: The rule provides that if a bird is of a species
that is listed by the Federal Government as threatened or endangered,
the rehabilitator must coordinate with the Service before releasing the
bird. In many cases, we will involve the State because we work in
partnership with State agencies on issues involving wildlife. However,
some States may not wish the Federal Government to mandate State
involvement in the release of federally listed species via Federal
regulation. It is more appropriate that State regulations, rather than
Federal, address whether or not rehabilitators must contact the State
before releasing listed species.
Comment: The rehabilitator should not need to contact the Service
before releasing a threatened or endangered species.
Service response: We strongly disagree with this comment. The
determination of where to release an individual of a listed species is
more critical than it is for nonlisted species in terms of overall
success of the species. The optimal release site may be one where the
individual bird is most likely to rejoin wild populations and
reproduce. The Service's biologists will often have information the
rehabilitator does not regarding the location and viability of wild
populations of listed migratory bird species.
Euthanasia Sec. 21.31(e)(4)(iii) and Sec. 21.31(e)(4)(iv).
Comment: You should delete the requirement to euthanize birds that
cannot feed themselves, perch upright, or ambulate; or are blind, or
require amputation of a leg, foot, or wing at the elbow or above. Some
birds with these conditions can lead useful lives as educational birds
or foster parents for juvenile migratory birds in rehabilitation. These
decisions should be left up to the permittee and the veterinarian.
Service response: The euthanasia requirements are based on humane
consideration for the birds. The handicaps and stress caused by these
type of injuries frequently lead to repeated additional injuries and
ailments throughout the duration of the bird's life. The Service does
not believe that birds should be subjected to this trauma and poor
quality of life for the sake of their human keepers, even if such birds
could be used as educational tools. Educational programs face no
shortage of less disabled nonreleasable birds. However, because
extraordinary circumstances may warrant an exception to this rule, we
have revised the rule to include the following narrow exemption: The
permit issuing office may waive the euthanasia requirement where (1) a
veterinarian makes a written recommendation that the bird should be
kept alive despite the severity of its injuries, including an analysis
of why the bird is not expected to experience the injuries and/or
ailments that typically occur in birds with these injuries, and a
commitment (from the veterinarian) to provide medical care for the bird
for the duration of its life, including complete examinations at least
once a year; and (2) a placement is available for the bird with a
person or facility authorized to possess it (e.g., someone with a
migratory bird education permit), where it will be provided that
Comment: If a permitted rehabilitation facility is willing to take
on the burden of caring for birds with the types of injuries for which
the rule requires euthanasia, why not let them?
Service response: First and foremost, the Service considers keeping
a bird alive under these conditions to be inhumane (see above).
Secondly, the purpose of the rehabilitation permit is to recover birds
for release to the wild, not to retain birds in captivity.
Nonreleasable birds must be transferred to another permit to be legally
possessed. Most rehabilitated birds that are kept in captivity are
transferred to an educational use permit, which requires that the bird
be used for conservation education. The Service does not issue permits
simply to keep birds in captivity. Allowing people to maintain
migratory birds in sanctuary situations would compromise the status of
migratory birds as wildlife. We believe that this outcome would be
detrimental to migratory birds and would constitute an abrogation of
our responsibility to protect and conserve wildlife.
Comment: The mandatory euthanasia requirements will stop people
from bringing sick and injured birds to rehabilitators.
Service response: We think this scenario is highly unlikely. People
bring birds to rehabilitators out of humane consideration for the
birds. The euthanasia requirements are borne from the same humane
consideration. If a bird has sustained trauma and injuries that are
likely to cause the bird stress, pain, and/or further injury throughout
the duration of its life, euthanasia is the kindest, most humane
treatment people can provide.
Comment: Euthanasia for these types of injuries should only be
the bird does not acclimate well and cannot be placed.
Service response: We disagree with this comment. Birds should not
be subjected to amputations only to be euthanized later due to failure
to acclimate. That is why the rule states that birds must be euthanized
rather than undergo amputation.
Comment: Euthanasia requirements should not be different for listed
species. Rehabilitators should be authorized to euthanize any bird that
is suffering due to an injury too serious to heal without having to
call the Service for permission.
Service response: The final rule continues to require
rehabilitators to contact the issuing office before euthanizing listed
species. The reason for this difference in treatment is that a rare
situation could arise in which the suffering of the bird might be
outweighed by a critical need to recover its species. For example, the
addition of a blind endangered bird could be significant to a dwindling
gene pool. The rule continues to provide that the rehabilitator may
proceed with euthanasia if Service personnel are not available and the
euthanasia is warranted because of humane considerations for the bird.
Placement and Transfer of Birds Sec. 21.31(e)(4)(v) and Sec.
21.31(e)(4)(vi). Comment: Rehabilitators should not have to get prior
approval from the Service before placing nonreleasable birds or their
parts or feathers with another permittee authorized to hold migratory
Service response: The requirement to obtain approval from the
issuing office before transferring nonreleasable birds will ensure that
birds are transferred to persons authorized to possess such birds, and
not to someone whose permit has expired, or who already has the maximum
number of birds authorized by his or her permit.
Comment: Rehabilitators should be required--not just allowed--to
donate dead specimens to institutions authorized by permit to possess
migratory bird specimens or exempted from the permit requirements under
Service response: We encourage permittees to transfer dead
specimens to other permit holders or exempt institutions who can use
them. However, many rehabilitators are already stretched to their
limits trying to care for the live birds they hold under their permit,
and the Service believes they should not be burdened with an additional
requirement to locate authorized persons to receive each dead specimen.
Comment: The rule should not require that all dead eagles be sent
to the National Eagle Repository. Rather, it should require permittees
to notify the State so the State can do necropsy, and then send the
birds to the Repository.
Service response: Not all States wish to be contacted by
rehabilitators with eagle carcasses. The rule has been revised to
clarify that permittees must comply with State requirements requiring
State notification and necropsy--where such requirements exist.
Imping Feathers Sec. 21.31(e)(4)(viii). Comment: The rule does not
specify what the Service considers to be a ``reasonable'' number of
feathers that a rehabilitator may keep for imping purposes.
Service response: We do not believe the regulation should establish
a specific number of feathers that may be legally retained for imping
purposes. Based on location, populations of species, and
specialization, rehabilitators will need varying numbers of feathers of
particular species. The final regulation states that a ``reasonable
number'' will be based on the numbers and species for which the
permittee regularly provides care.
Taking blood samples Sec. 21.31(e)(4)(ix). Comment: The rule
should allow rehabilitators to take blood and tissue samples for
research that would aid rehabilitators and the species with which they
work, as long as doing so does not jeopardize the individual bird. For
example, blood may be drawn to establish normal values for particular
species, or to research contagious diseases that are not human health
Service response: We have modified this provision to clarify that
samples may be taken for purposes of diagnosis and recovery not just of
the individual bird, but of the birds under the permittee's care,
generally. For broader research purposes, the rehabilitator should
obtain a migratory bird scientific collecting permit issued under 50
Recall of birds Sec. 21.31(e)(4)(xi). Comment: The proposed rule
states that migratory birds held under a rehabilitation permit remain
under the stewardship of the Service and may be recalled at any time.
Under what circumstances would the Government recall birds? What is the
Service response: The rule has been revised to clarify that
permittees do not own the migratory birds they hold under this permit.
The language concerning recall has been removed because we do not
believe it is necessary that this regulation state that the Service
would and does remove birds from the possession of permittees when the
quality of care provided to the birds is not adequate or when a
permittee violates wildlife laws, regulations, or the terms of the
Notification to the Service Sec. 21.31(e)(5) and throughout.
Comment: The rule contains too many notification requirements. The
requirements for permittees to contact the Service so often are too
Service response: The proposed regulation contained 11 discreet
requirements for the permittee to notify the Service and/or gain
additional authorization under certain circumstances. Ten of those
notification requirements are not new in this regulation, but are
carried over from the current standard conditions attached to all
existing permits. Seven apply only to threatened and endangered
species, and are needed so that the Service can determine the best
placement for these birds. The Service is engaged in active recovery
efforts for many listed migratory bird species, and because of the
relative scarcity of listed species, the placement of each individual
can have greater ramifications for the conservation of the species than
is the case for non-listed species. Because listed species are
relatively rare, most rehabilitators do not routinely encounter them,
so these notification requirements will not be used often and should
not create a burden for rehabilitators.
Of the remaining three notifications, two should seldom be needed:
the requirement to contact a Service law enforcement officer when there
is reason to believe that a bird has been injured as the result of
criminal activity; and the requirement to gain approval from the
issuing office to keep a bird longer than 180 days. The final
requirement--to obtain authorization from the issuing office before
transferring a nonreleasable bird to another person--is an important
safeguard to ensure that birds are placed with persons who are legally
authorized to possess migratory birds.
The only new notification provision the proposed rule contained was
the requirement to contact the Service if the rehabilitator suspects
that a bird has an avian virus or other contagious disease. We have
revised that provision to require the permittee to contact his or her
State or local authority that is responsible for monitoring the
particular health threat, rather than notify the Service. In the case
of West Nile Virus, for example, the public is usually advised to
contact their county public health agency to report diseased
birds, but in some States a designated State agency is responsible for
receiving those calls. While this information may be of some use to the
Service, we do not have primary responsibility for responding to
reports of contagious diseases that are considered to be public health
threats, even when such diseases are carried by birds. Requiring
rehabilitators to contact the responsible State or local agency, rather
than the Service, will eliminate what would have been a redundant
notification. Because rehabilitators are in a good position to
contribute to nationwide efforts to monitor contagious avian diseases,
the requirement to notify the appropriate State or local authority will
benefit to the public by enhancing efforts to protect the health and
safety of humans, livestock and wildlife.
Comment: The Service should set up a 24-hour hotline to receive the
required calls from rehabilitators, and it should be an 800 number.
Service response: Aside from the notifications required in
circumstances involving threatened and endangered species, which we
believe will not be exercised often, the rule does not contain
excessive requirements to contact the Service (see above).
Comment: The rule relies too heavily on the Internet for obtaining
phone numbers of other Service offices. Other forms of access to such
information should be provided.
Service response: We are revising our permit information tracking
system so that it can record and generate the phone numbers for Service
Law Enforcement offices that are local to the permittee. Permits will
be issued using this new capacity, with the necessary contact
information printed on the permit. The rule has been revised to reflect
the fact that the contact information for these offices is listed on
Comment: Rehabilitators should not have the burden of contacting
the Service immediately upon receiving a threatened or endangered
species. This provision fails to recognize the actual conditions under
which rehabilitators are working. Immediate notification could
jeopardize the bird, which may need immediate stabilization. Often
personnel are not there to receive the calls (e.g., on weekends)
Service response: The rule has been revised to require the
permittee to contact the Service within 24 hours of receiving a
threatened or endangered species. If Service personnel cannot be
reached, you should leave a message.
Comment: The proposed rule requires rehabilitators to report birds
that appear to have been injured by criminal activity to both the
Office of Law Enforcement and to the Migratory Bird Permit Office.
Rehabilitators should not have to call two Service offices to report
Service response: We agree with this comment and have revised the
rule to remove the requirement to notify the permit office.
Comment: Immediate notification to law enforcement where birds
appear to have been injured as the result of criminal activity is not
practicable. Rehabilitators are often busy stabilizing bird(s).
Instead, the requirement to notify the Service should be ``within 48
Service response: Service Law Enforcement personnel need to be
notified immediately when it appears a crime has taken place.
Otherwise, evidence needed to build a successful investigation may be
compromised or lost before it can be collected.
Comment: ``Criminal activity'' should be more clearly defined.
Poisoning and electrocution should not be considered criminal activity.
Service response: Poisoning and electrocution are considered
criminal activity in many circumstances. Power companies and pesticide
manufacturers and applicators are frequently held liable for killing
birds, particularly when ample evidence exists that they knew or should
have known that their actions were likely to kill birds. Electrocution
of birds on power lines is generally considered a prosecutable
violation, since reasonable industry-accepted measures have been
identified that can be implemented to avoid killing migratory birds. We
believe that the rule need not further specify what is meant by
criminal activity, since it is not possible to define all the criminal
activities that could take place, or always clearly identify under what
circumstances a particular action is criminal. The provision requires
that rehabilitators notify the Service when they have reason to believe
that birds under their care were injured as the result of a criminal
act, so that we have the opportunity to pursue the case, if
Comment: The rule should require permittees to contact their State
conservation agencies as well as the Service whenever notification is
Service response: Not all States want these notifications. As a
Federal agency, we will not impose this requirement on States that do
not wish to be contacted. It is more appropriate for State regulations
to address this requirement.
Recordkeeping Sec. 21.31(e)(7). Comment: It would be useful to
some States if the information required in the recordkeeping provisions
included the county and distance to the nearest town.
Service response: The information required to be kept in the
permittee's records is the same information that we ask for in the
annual report. It is not useful for our purposes to document the county
or the nearest town, and we do not have enough staff to sift through
extra information that we will not use. Also, we do not wish to burden
permittees by requiring them to keep and submit information that we
will not use. Those States that find that information useful may wish
to include those items as reporting requirements in their State
Comment: Rehabilitators should be required to record the location
where the bird was found, if known, because it is important for
purposes of data collection and release. Also, the location of release
should be required in records for enforcement purposes. The incident
that caused the distress or injury should be recorded (e.g., collision
with window, cat attack), if known, for purposes of future analysis.
Records should include the name and contact information of the person
who found and/or delivered the bird because of possible exposure to
Service response: While much of this information could be useful to
the rehabilitator, or to a third party, we do not at this time have a
need to collect this information. If permittees wish to keep these
records, we encourage them to do so, but we see no reason to require
information to be collected and submitted to us when we will not use
Comment: Why should the permittee be required to keep the records
for 5 years? That should be the Service's responsibility. This
requirement is an unnecessary burden on the permittee.
Service response: The requirement that permittees keep records for
5 years predates this rule and applies to all Service permits, and is
codified at 50 CFR part 13.46. We also keep the information submitted
via annual reports, but if discrepancies arise, permittees may benefit
by being able to produce their own records.
Additional Conditions May be Placed on the Face of the Permit.
Sec. 21.31(e)(9). Comment: There should be no further reason to
condition permits if a person meets the requirements set forth in the
rule. This provision appears to contradict the rule's stated intent to
``codify * * *, clarify * * *, and * * *specify'' migratory bird
rehabilitation permit policy. The Service should specify what sort of
``additional conditions'' are meant by
this provision. It's too open-ended and could be abused.
Service response: We have revised this provision to clarify its
meaning and scope. Our intent is to provide that permits may be
tailored so that they differ from one another according to the
circumstances of the applicants (e.g., what kind of experience and
facilities they have). If all rehabilitation permits had exactly the
same set of standard conditions and no additional conditions, every
permittee would be qualified to rehabilitate any number of all types of
migratory birds, without exception. For example, rehabilitators who
intend to rehabilitate only nestlings do not need extensive caging. The
Service needs to be able to differentiate what types of birds these
nestling rehabilitators are authorized to rehabilitate from those a
passerine rehabilitator is authorized to rehabilitate or those a large
facility with flight cages or pools for waterbirds may rehabilitate.
This can be done only if permits can be further conditioned on their
face at the time of issuance (or later, if the permittee demonstrates
that he or she has expanded the facilities and/or gained additional
Comment: The ``additional conditions'' provision would be more
palatable if there existed some kind of review/appeal process for
applicants to appeal.
Service response: Regulations addressing the process for
challenging permit decisions, including permit conditions, are set
forth in 50 CFR 13.29. These regulations address procedures for all
Service permits, and cover how to file a Request for Reconsideration to
the issuing office. They also set forth procedures for filing a written
appeal to the Regional Director if the applicant/permittee is
dissatisfied with the determination made on the Request for
Comment: To avoid the creation of additional conditions, the
Service should establish a multi-tiered permit incorporating different
levels of experience and facilities standards, where each level has
Service response: We do not believe such a system could adequately
capture all the variables and particulars that make one situation
different from another. Additional conditions would still be necessary
in order to accommodate these variables, or else some permits would
simply have to be denied--which we do not view as a good alternative.
Liability Clause Sec. 21.31(e)(10). Comment: As worded, the
provision of the proposed rule that indemnifies the Service from
liability could confer unreasonable liability to the permittee,
resulting in lawsuits against rehabbers.
Service response: We have removed this provision from the rule
because permit liability for all Service permits is already set forth
at 50 CFR 13.50, which reads: ``any person holding a permit under this
subchapter B assumes all liability and responsibility for the conduct
of any activity conducted under the authority of such permit.''
Oil Spill Provisions Sec. 21.31(f). Comment: Why does the Service
want to be notified whenever a dead bird is found at the site of an oil
Service response: There are a variety of legal aspects relating to
oil spills, including the ability of the government to recover damages
for birds and other wildlife killed or injured, and in some cases to
bring criminal charges. In such cases, the Service must be able to
document the number and locations of dead birds and other wildlife
before they are removed from the site. Since it is not generally
possible to determine until after the immediate cleanup or site
stabilization whether this information will be needed, we collect it
Comment: How can the public get copies of Best Practices for Care
of Migratory Birds During Oil Spill Response, the document referenced
in the rule?
Service response: We have inserted a footnote into the rule,
providing information on how to obtain this document.
Term of Permit Sec. 21.31(h). Comment: Permit tenure should be 1
year only. If a 5-year tenure is included in the final regulation, the
wording should be more clear as to whether all rehabilitation permits
will be issued for 5 years, or whether some will have shorter terms.
Service response: Because the majority of rehabilitators'
circumstances will not substantially change from year to year, we do
not see any purpose in renewing permits annually. We believe that the
annual report requirement will allow the Service to monitor the factors
that are most important to safeguard the welfare of birds held under
rehabilitation permits. We do not wish to burden the permittees with an
annual permit renewal, nor do we believe that processing every
permittee's renewal every year is a good use of limited Service
resources. Although most permits will have a tenure of 5 years under
the final regulation, the wording ``No rehabilitation permit will have
a term exceeding five (5) years'' allows the Service the flexibility to
issue some rehabilitation permits for less than 5 years, if
Comment: The rule does not contain any provisions for the renewal
Service response: Regulations covering permit renewal for all
Service-issued permits are set forth in 50 CFR 13 (General Permit
Procedures). For the rehabilitation permit, as for other migratory bird
permits, the permittee need not submit all of the information required
in an original permit application. Instead, he or she should submit a
Service permit renewal form, which is mailed to all permittees when
their permits are nearing expiration. The form asks the permittee to
certify that the information previously submitted (through either the
original permit application or a subsequent renewal or amendment) is
still accurate. If any required information has changed, the permittee
must submit the updated information.
Comment: The annual report/permit renewal process is not timed
smoothly, with permits expiring at the end of the calendar year, but
annual reports due at the end of the following January. Renewal permits
should be sent separately (first), so the rehabilitator does not have
to operate under an expired permit.
Service response: We have adjusted the timing of the permit renewal
process to address this problem. Rehabilitation permits will be issued
to be valid starting on April 1, rather than January 1. As existing
permits are renewed, they will be re-issued with a 5-year tenure, as
provided by this rule. Permits will expire on March 31st rather than
December 31st. This will result in a more logical, coordinated process
wherein permittees can submit their annual reports and renewal requests
together, and the renewal request will be received well before the
expiration of the permit.
Comment: Renewal should be correlated with State permit renewal.
Service response: Permit tenure and renewal dates vary widely from
State to State. Federal permits would have to have different tenures
depending on the State in which the permittee resides. Tracking and
maintaining renewals under these circumstances would be very difficult
for the Service. Therefore, we will continue to process renewals at the
same time each year.
Will I need to apply for a new permit if I already have a Special
Purpose--Rehabilitation permit? Sec. 21.31(i) Comment: The rule does
not say whether current permit holders will be ``grandfathered,'' or
whether they will have to reapply under the new regulations.
Service response: Current permit holders need not take any special
as a result of the new rule. When it is time to renew their permits, if
they wish to continue rehabilitating migratory birds, they should apply
for renewal using the Service permit renewal form mailed to them by the
issuing office. Rehabilitation permits will be renewed under the new
permit category created by this rule. In addition, the final rule
contains a ``grandfather clause,'' which states, in part: ``If your
facilities have already been approved on the basis of photographs and
diagrams, and authorized under a valid Sec. 21.27 special purpose
permit, then they are preapproved to be authorized under your new
permit issued under this section, unless those facilities have
materially diminished in size or quality from what was authorized when
you last renewed your permit, or unless you wish to expand the
authorizations granted by your permit (e.g., the number or types of
birds you rehabilitate).''
Inspections. Comment: The rule does not address rehabilitation
Service response: Inspection of permittees' facilities is addressed
in 50 CFR 13.47. The regulations provide that a Service Law Enforcement
official (``the Director's agent'') may inspect the premises, wildlife,
and records at ``any reasonable hour.''
Comment: Facility inspections should be conducted before issuing
each permit and then at regular intervals during the term of the permit
to ensure that facilities maintain standards.
Service response: Although we will conduct site visits prior to
issuing some permits, we do not have the resources to inspect all
applicants' facilities. As part of the application process, the
applicant must submit photographs and diagrams of his or her
facilities. These should provide enough information to determine
whether most applicants' facilities are adequate. Many State
conservation agencies have more resources available to them than we do,
and are able to send officers out to perform inspections more
regularly. Coordination between State agencies and the Service allows
us to identify situations where problems exist and Federal inspection
may be warranted.
Comment: Permitted rehabilitators should not be allowed to raise,
rehabilitate, or release non-native species such as European starlings
and house sparrows because these negatively affect native migratory
Service response: The Service does not have the authority to
prohibit possession or rehabilitation of birds that are not protected
by the Federal laws we are charged with implementing. We agree that
rehabilitation of common invasive species such as starlings and house
sparrows could have a minor negative impact on conservation of native
species, and we would prefer that exotic species not be released to the
wild. However, this issue is the jurisdiction of State governments,
which have primary regulatory authority on most matters concerning
Comment: The Service should transfer permitting authority to the
States to administer, where States demonstrate they meet certain
Service response: At this time, the majority of the States have not
developed specific regulations regarding migratory bird rehabilitation.
As of 1999, according to a study conducted by Allan M. Casey III and
Shirley J. Casey (A Study of the State Regulations Governing Wildlife
Rehabilitation During 1999), only 33 States had regulations addressing
wildlife rehabilitation. These vary widely in terms of scope and the
level of detail addressed. State regulations pertaining specifically to
migratory bird rehabilitation are virtually nonexistent.
Comment: The rule should require that the permittee be a member of
either the National Wildlife Rehabilitators Association (NWRA), the
International Wildlife Rehabilitation Council (IWRC), or both.
Service response: We do not agree that membership in the NWRA or
the IWRC should be a prerequisite for obtaining or maintaining a
Federal migratory bird rehabilitation permit. Both associations have
contributed to the increasing quality of wildlife rehabilitation, and
they have much to offer rehabilitators in the way of continuing
education, networking, and other services. However, both the NWRA and
the IWRC are nongovernmental organizations and are not affiliated with
the Service. The criteria of this rule should ensure that permittees
have basic competence and qualifications necessary for migratory bird
rehabilitation. As with any profession, rehabilitators will always be
in a position to gain additional knowledge and skills. Membership in
the NWRA and/or IWRC may provide a means of attaining this growth and
improvement, should rehabilitators elect to join either or both
Comment: The rule should require permittees to provide evidence of
continuing education every 2 years.
Service response: While we strongly encourage permittees to attend
classes, conferences, seminars, and presentations in order to increase
knowledge and improve skills, we believe that the qualifications for
obtaining the Federal permit, together with the experience gained by
putting the permit to use, will guarantee a basic level of knowledge
and experience sufficient to rehabilitate migratory birds, without our
mandating additional formal training.
Comment: Some provisions of the rule will interfere with recovery
operations of chemical companies that operate under special purpose
rehabilitation permits. The troubling provisions include the following
requirements: listing all individuals on the permit (helpers at the
chemical company recovery operations are usually seasonal college
students and other temporary labor), conforming to facility
requirements, maintaining a working relationship with veterinarians,
and establishing a working relationship with another permitted
rehabilitator. These recovery operations only hold birds long enough to
clean off sodium carbonate (Na2CO3) or to allow
fresh water to rinse off dilute phosphoric acid.
Service response: Because such recovery efforts operate under
parameters much different from those governing the activities of
``typical'' migratory bird rehabilitators, the Service will continue to
issue permits for this type of recovery operation under the Special
Purpose permit (Sec. 21.27) rather than the permit category created by
Comment: The rule has far too many new paperwork requirements.
Service response: This rule does not introduce any new paperwork
requirements. All reporting requirements remain unchanged from what has
been required under the Special Purpose--Rehabilitation permit
Endangered Species Act Consideration
Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as
amended (16 U.S.C. 1531, et seq.), requires all Federal agencies to
``insure that any action authorized, funded, or carried out * * * is
not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of [critical] habitat.'' The Service underwent intra-
Service consultation pursuant to section 7 of the ESA and determined
that the activities authorized by this rule will not jeopardize listed
species or result in destruction or adverse modification of critical
Responsibilities of Federal Agencies To Protect Migratory Birds
Order 13186). This rule has been evaluated for impacts to migratory
birds, with emphasis on species of management concern, and is in
accordance with the guidance in E.O. 13186.
Regulatory Planning and Review (Executive Order 12866). In
accordance with the criteria in Executive Order 12866, this rule is not
a significant regulatory action. OMB has made this final determination
of significance under E.O. 12866.
a. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit and economic
analysis is not required.
b. This rule will not create serious inconsistencies or otherwise
interfere with other agencies' actions. The Fish and Wildlife Service
is the only Federal agency responsible for enforcing the Migratory Bird
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
This rule does not have anything to do with the afore-mentioned
d. This rule does not raise novel legal or policy issues.
Rehabilitation activities for migratory birds currently operate under a
different permit than that proposed in this rule.
Regulatory Flexibility Act. Under the Regulatory Flexibility Act (5
U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is
required to publish a notice of rulemaking for any proposed or final
rule, it must either certify that the rule will not have a significant
economic impact on a substantial number of small entities (i.e., small
business, small organizations, and small governmental jurisdictions) or
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small entities.
We have examined this rule's potential effects on small entities as
required by the Regulatory Flexibility Act. This rule requires
applicants for migratory bird rehabilitation permits to pay the fee
listed in the Service permit application fee schedule at 50 CFR 13.11.
Currently, the Service waives fees for migratory bird rehabilitation
permit applicants. This rulemaking reinstates the standard $25 permit
application fee and extends the term of the permit to 5 years. The net
effect is that approximately 2,500 persons will pay $25 every 5 years
to obtain and renew migratory bird rehabilitation permits, amounting to
$5 per year per rehabilitator. Therefore, we certify that this action
will not have a significant economic impact on a substantial number of
small entities. A final Regulatory Flexibility Analysis is not
required. Accordingly, a Small Entity Compliance Guide is not required.
Unfunded Mandates Reform Act. In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. We have
determined and certified pursuant to the Unfunded Mandates Reform Act,
2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of
$100 million or more in any given year on local or State government or
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.
Takings. In accordance with Executive Order 12630, the rule does
not have significant takings implications. This rule will not result in
the physical occupancy of property, the physical invasion of property,
or the regulatory taking of any property. A takings implication
assessment is not required.
Federalism. In accordance with Executive Order 13132, and based on
the discussions in Regulatory Planning and Review above, this rule does
not have significant Federalism effects. A Federalism assessment is not
required. Because of the migratory nature of certain species of birds,
the Federal Government has been given responsibility over these species
by the Migratory Bird Treaty Act. This rule does not have a substantial
direct effect on fiscal capacity, nor does it change the roles or
responsibilities of Federal or State governments or intrude on State
policy or administration.
Civil Justice Reform. In accordance with Executive Order 12988, the
Office of the Solicitor has determined that the rule does not unduly
burden the judicial system, and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. The Department of the Interior
has certified to the Office of Management and Budget that this rule
meets the applicable standards provided in Sections 3(a) and 3(b)(2) of
Paperwork Reduction Act. This rule does not contain new or revised
information collection for which Office of Management and Budget
approval is required under the Paperwork Reduction Act. Information
collection associated with migratory bird permit programs has been
approved by OMB under control number 1018-0022, which expires April 30,
2004. The Service 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. We have determined that this
rule is categorically excluded under the Department's NEPA procedures
in 516 DM 2, Appendix 1.10.
Government-to-Government Relationship with Tribes. In accordance
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951), E.O. 13175, and 512 DM 2, this rule will have no effect on
federally recognized Indian tribes.
List of Subjects
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
For the reasons set forth in this preamble, we amend 50 CFR chapter I
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.21 to add paragraphs (c)(6), (c)(7), (d)(3), and
(d)(4) to read as follows:
Sec. 17.21 Prohibitions.
* * * * *
(c) * * *
(6) Notwithstanding paragraph (c)(1) of this section, any person
acting under a valid migratory bird rehabilitation permit issued
pursuant to Sec. 21.31 of this subchapter may take endangered
migratory birds without an endangered
species permit if such action is necessary to aid a sick, injured, or
orphaned endangered migratory bird, provided the permittee:
(i) Notifies the issuing Migratory Bird Permit Office immediately
upon receipt of such bird (contact information for your issuing office
is listed on your permit and on the Internet at http://offices.fws.gov
(ii) Disposes of or transfers such birds, or their parts or
feathers, as directed by the Migratory Bird Permit Office.
(7) Notwithstanding paragraph (c)(1) of this section, persons
exempt from the permit requirements of Sec. 21.12(c) and (d) of this
subchapter may take sick and injured endangered migratory birds without
an endangered species permit in performing the activities authorized
under Sec. 21.12(c) and (d).
(d) * * *
(3) Notwithstanding paragraph (d)(1) of this section, any person
acting under a valid migratory bird rehabilitation permit issued
pursuant to Sec. 21.31 of this subchapter may possess and transport
endangered migratory birds without an endangered species permit when
such action is necessary to aid a sick, injured, or orphaned endangered
migratory bird, provided the permittee:
(i) Notifies the issuing Migratory Bird Permit Office immediately
upon receipt of such bird (contact information for your issuing office
is listed on your permit and on the Internet at http://offices.fws.gov
(ii) Disposes of or transfers such birds, or their parts or
feathers, as directed by the Migratory Bird Permit Office.
(4) Notwithstanding paragraph (d)(1) of this section, persons
exempt from the permit requirements of Sec. 21.12(c) and (d) of this
subchapter may possess and transport sick and injured endangered
migratory bird species without an endangered species permit in
performing the activities authorized under Sec. 21.12(c) and (d).
* * * * *
PART 21--MIGRATORY BIRD PERMITS
3. The authority citation for part 21 is revised to read as follows:
Authority: 16 U.S.C. 703-712; Pub. L. 106-108; 16 U.S.C. 668a.
4. Revise Sec. 21.2(b) to read as follows:
Sec. 21.2 Scope of regulations.
* * * * *
(b) This part, except for Sec. 21.12(a), (c), and (d) (general
permit exceptions); Sec. 21.22 (banding or marking); Sec. 21.29
(Federal falconry standards); and Sec. 21.31 (rehabilitation), does
not apply to the bald eagle (Haliaeetus leucocephalus) or the golden
eagle (Aquila chrysaetos), for which regulations are provided in part
22 of this subchapter.
* * * * *
5. Amend Sec. 21.12 to add paragraphs (c) and (d) to read as follows:
Sec. 21.12 General exceptions to permit requirements.
* * * * *
(c) Employees of Federal, State, and local wildlife and land
management agencies; employees of Federal, State, and local public
health agencies; and laboratories under contract to such agencies may
in the course of official business collect, possess, transport, and
dispose of sick or dead migratory birds or their parts for analysis to
confirm the presence of infectious disease. Nothing in this paragraph
authorizes the take of uninjured or healthy birds without prior
authorization from the Service. Additionally, nothing in this paragraph
authorizes the taking, collection, or possession of migratory birds
when circumstances indicate reasonable probability that death, injury,
or disability was caused by factors other than infectious disease and/
or natural toxins. These factors may include, but are not limited to,
oil or chemical contamination, electrocution, shooting, or pesticides.
If the cause of death of a bird is determined to be other than natural
causes or disease, Service law enforcement officials must be contacted
(d) Licensed veterinarians are not required to obtain a Federal
migratory bird permit to temporarily possess, stabilize, or euthanize
sick and injured migratory birds. However, a veterinarian without a
migratory bird rehabilitation permit must transfer any such bird to a
federally permitted migratory bird rehabilitator within 24 hours after
the bird's condition is stabilized, unless the bird is euthanized. If a
veterinarian is unable to locate a permitted rehabilitator within that
time, the veterinarian must contact his or her Regional Migratory Bird
Permit Office for assistance in locating a permitted migratory bird
rehabilitator and/or to obtain authorization to continue to hold the
bird. In addition, veterinarians must:
(1) Notify the local U.S. Fish and Wildlife Service Ecological
Services Office immediately upon receiving a threatened or endangered
migratory bird species. Contact information for Ecological Services
offices can be located on the Internet at http://offices.fws.gov;
(2) Euthanize migratory birds as required by Sec. 21.31(e)(4)(iii)
and Sec. 21.31(e)(4)(iv), and dispose of dead migratory birds in
accordance with Sec. 21.31(e)(4)(vi); and
(3) Keep records for 5 years of all migratory birds that die while
in their care, including those they euthanize. The records must
include: the species of bird, the type of injury, the date of
acquisition, the date of death, and whether the bird was euthanized.
6. Add Sec. 21.31 to subpart C to read as follows:
Sec. 21.31 Rehabilitation permits.
(a) What is the permit requirement? Except as provided in Sec.
21.12, a rehabilitation permit is required to take, temporarily
possess, or transport any migratory bird for rehabilitation purposes.
However, any person who finds a sick, injured, or orphaned migratory
bird may, without a permit, take possession of the bird in order to
immediately transport it to a permitted rehabilitator.
(b) What are the general permit provisions?
(1) The permit authorizes you to:
(i) Take from the wild or receive from another person sick,
injured, or orphaned migratory birds and to possess them and provide
rehabilitative care for them for up to 180 days;
(ii) Transport such birds to a suitable habitat for release, to
another permitted rehabilitator's facilities, or to a veterinarian;
(iii) Transfer, release, or euthanize such birds;
(iv) Transfer or otherwise dispose of dead specimens; and
(v) Receive, stabilize, and transfer within 48 hours types of
migratory bird species not authorized by your permit, in cases of
emergency. If a rehabilitator authorized to care for the bird is not
available within that timeframe, you must contact the issuing office
for authorization to retain the bird until it can be transferred.
(2) The permit does not authorize the use of migratory birds for
(c) How do I apply for a migratory bird rehabilitation permit? You
must apply to the appropriate Regional Director--Attention Migratory
Bird Permit Office. You can find addresses for the appropriate Regional
Directors in Sec. 2.2 of subchapter A of this chapter. Your
application package must consist of the following:
(1) A completed application (Form 3-200-10b);
(2) A copy of your State rehabilitation permit, license, or other
authorization, if one is required in your State; and
(3) A check or money order made payable to the ``U.S. Fish and
Wildlife Service'' in the amount of the
application fee for permits issued under this section listed in Sec.
13.11 of this chapter.
(d) What criteria will the Service consider before issuing a
permit? (1) Upon receiving an application completed in accordance with
paragraph (c) of this section, the Regional Director will decide
whether to issue you a permit based on the general criteria of Sec.
13.21 of this chapter and whether you meet the following requirements:
(i) You must be at least 18 years of age with at least 100 hours of
hands-on experience, gained over the course of at least 1 whole year,
rehabilitating the types of migratory birds you intend to rehabilitate
(e.g., waterbirds, raptors), or comparable experience. Up to 20 hours
of the 100-hour time requirement may be fulfilled by participation in
migratory bird rehabilitation seminars and courses.
(ii) Your facilities must be adequate to properly care for the
type(s) of migratory bird species you intend to rehabilitate, or you
must have a working relationship with a person or organization with
(iii) You must have an agreement with a licensed veterinarian to
provide medical care for the birds you intend to rehabilitate, unless
you are a licensed veterinarian.
(iv) You must have a State permit, license, or other authorization
to rehabilitate migratory birds if such authorization required by your
(2) In issuing a permit, the Regional Director may place
restrictions on the types of migratory bird species you are authorized
to rehabilitate, based on your experience and facilities as well as on
the specific physical requirements and behavioral traits of particular
(e) What are the standard conditions for this permit? In addition
to the general permit conditions set forth in part 13 of this chapter,
rehabilitation permits are subject to the following conditions:
(1) Facilities. You must conduct the activities authorized by this
permit in appropriate facilities that are approved and identified on
the face of your permit. In evaluating whether caging dimensions are
adequate, the Service will use as a guideline the standards developed
by the National Wildlife Rehabilitators Association and the
International Wildlife Rehabilitation Council (Minimum Standards for
Wildlife Rehabilitation, 2000).\1\ The Regional Migratory Bird Permit
Office will authorize variation from the standards where doing so is
reasonable and necessary to accommodate a particular rehabilitator's
circumstances, unless a determination is made that such variation will
jeopardize migratory birds. However, except as provided by paragraph
(f)(2)(i) of this section, all facilities must adhere to the following
\1\ Copies may be obtained by contacting either the National
Wildlife Rehabilitators Association: 14 North 7th Avenue, St. Cloud
MN 56303-4766, http://www.nwawildlife.org/default.asp; or the
International Wildlife Rehabilitation Council: 829 Bancroft Way,
Berkeley, CA 94710, http://www.iwrc-online.org.
(i) Rehabilitation facilities for migratory birds must be secure
and provide protection from predators, domestic animals, undue human
disturbance, sun, wind, and inclement weather.
(ii) Caging must be made of a material that will not entangle or
cause injury to the type of birds that will be housed within.
(iii) Enclosures must be kept clean, well-ventilated, and hygienic.
(iv) Birds must not be overcrowded, and must be provided enough
perches, if applicable.
(v) Birds must be housed only with compatible migratory bird
(vi) Birds may not be displayed to the public unless you use video
equipment, barriers, or other methods to reduce noise and exposure to
humans to levels the birds would normally encounter in their habitat.
You may not use any equipment for this purpose that causes stress or
harm, or impedes the rehabilitation of any bird.
(2) Dietary requirements. You must provide the birds in your care
with a diet that is appropriate and nutritionally approximates the
natural diet consumed by the species in the wild, with consideration
for the age and health of the individual bird.
(3) Subpermittees. Except as provided by paragraph (f)(2)(ii) of
this section, anyone who will be performing activities that require
permit authorization under paragraph (b)(1) of this section when you or
a subpermittee are not present, including any individual who transports
birds to or from your facility on a regular basis, must either possess
his or her own Federal rehabilitation permit, or be authorized as your
subpermittee by being named in writing to your issuing Migratory Bird
Permit Office. Subpermittees must be at least 18 years of age and
possess sufficient experience to tend the species in their care.
Subpermittees authorized to care for migratory birds at a site other
than your facility must have facilities adequate to house the species
in their care, based on the criteria of paragraph (e)(1) of this
section. All such facilities must be approved by the issuing office. As
the primary permittee, you are legally responsible for ensuring that
your subpermittees, staff, and volunteers adhere to the terms of your
permit when conducting migratory bird rehabilitation activities.
(4) Disposition of birds under your care. (i) You must take every
precaution to avoid imprinting or habituating birds in your care to
humans. If a bird becomes imprinted to humans while under your care,
you will be required to transfer the bird as directed by the issuing
(ii) You may not retain migratory birds longer than 180 days
without additional authorization from your Regional Migratory Bird
Permit Office. You must release all recuperated birds to suitable
habitat as soon as seasonal conditions allow, following recovery of the
bird. If the appropriate season for release is outside the 180-day
timeframe, you must seek authorization from the Service to hold the
bird until the appropriate season. Before releasing a threatened or
endangered migratory bird, you must coordinate with your issuing
Migratory Bird Permit Office.
(iii) You must euthanize any bird that cannot feed itself, perch
upright, or ambulate without inflicting additional injuries to itself
where medical and/or rehabilitative care will not reverse such
conditions. You must euthanize any bird that is completely blind, and
any bird that has sustained injuries that would require amputation of a
leg, a foot, or a wing at the elbow or above (humero-ulnar joint)
rather than performing such surgery, unless:
(A) A licensed veterinarian submits a written recommendation that
the bird should be kept alive, including an analysis of why the bird is
not expected to experience the injuries and/or ailments that typically
occur in birds with these injuries and a commitment (from the
veterinarian) to provide medical care for the bird for the duration of
its life, including complete examinations at least once a year;
(B) A placement is available for the bird with a person or facility
authorized to possess it, where it will receive the veterinary care
described in paragraph (e)(4)(iii)(A) of this section; and
(C) The issuing office specifically authorizes continued
possession, medical treatment, and rehabilitative care of the bird.
(iv) You must obtain authorization from your issuing Migratory Bird
Permit Office before euthanizing endangered and threatened migratory
bird species. In rare cases, the Service may designate
a disposition other than euthanasia for those birds. If Service
personnel are not available, you may euthanize endangered and
threatened migratory birds without Service authorization when prompt
euthanasia is warranted by humane consideration for the welfare of the
(v) You may place nonreleasable live birds that are suitable for
use in educational programs, foster parenting, research projects, or
other permitted activities with persons permitted or otherwise
authorized to possess such birds, with prior approval from your issuing
Migratory Bird Permit Office.
(vi)(A) You may donate dead birds and parts thereof, except
threatened and endangered species, and bald and golden eagles, to
persons authorized by permit to possess migratory bird specimens or
exempted from permit requirements under Sec. 21.12.
(B) You must obtain approval from your issuing office before
disposing of or transferring any live or dead endangered or threatened
migratory bird specimen, parts, or feathers.
(C) You must send all dead bald and golden eagles, and their parts
and feathers to: National Eagle Repository, Building 128, Rocky
Mountain Arsenal, Commerce City, CO 80022. If your State requires you
to notify State wildlife officers of a dead bald or golden eagle before
sending the eagle to the Repository you must comply with State
regulations. States may assume temporary possession of the carcasses
for purposes of necropsy.
(D) Unless specifically required to do otherwise by the Service,
you must promptly destroy all other dead specimens by such means as are
necessary to prevent any exposure of the specimens to animals in the
(vii) With authorization from your issuing Migratory Bird Permit
Office, you may hold a nonreleasable bird longer than 180 days for the
purpose of fostering juveniles during their rehabilitation. You may
also use birds you possess under an educational permit to foster
(viii) You may possess a reasonable number of feathers for imping
purposes, based on the numbers and species of birds for which you
regularly provide care.
(ix) You may draw blood and take other medical samples for purposes
of the diagnosis and recovery of birds under your care, or for transfer
to authorized facilities conducting research pertaining to a contagious
disease or other public health hazard.
(x) You may conduct necropsies on dead specimens in your
possession, except that you must obtain approval from your Regional
Migratory Bird Permit Office before conducting necropsies on threatened
or endangered species.
(xi) This permit does not confer ownership of any migratory bird.
All birds held under this permit remain under the stewardship of the
U.S. Fish and Wildlife Service.
(5) Notification to the U.S. Fish and Wildlife Service.
(i) You must notify your issuing Migratory Bird Permit Office
within 24 hours of acquiring a threatened or endangered migratory bird
species, or bald or golden eagle, whether live or dead. You may be
required to transfer these birds to another facility designated by the
(ii) You must immediately notify the local U.S. Fish and Wildlife
Service Law Enforcement Office if you have reason to believe a bird has
been poisoned, electrocuted, shot, or otherwise subjected to criminal
activity. Contact information for your local Service Law Enforcement
office is listed on your permit, or you can obtain it on the Internet
(iii) If the sickness, injury, or death of any bird is due or
likely due to avian virus, or other contagious disease or public health
hazard, you must notify and comply with the instructions given by the
State or local authority that is responsible for tracking the suspected
disease or hazard in your location, if that agency is currently
collecting such information from the public.
(6) You must maintain a working relationship with a licensed
veterinarian. If your working relationship with your original
cooperating veterinarian is dissolved, you must establish an agreement
within 30 days with another licensed veterinarian to provide medical
services to the birds in your care, and furnish a copy of this
agreement to the issuing office.
(7) Recordkeeping. You must maintain complete and accurate records
of all migratory birds that you receive, including for each bird the
date received, type of injury or illness, disposition, and date of
disposition. You must retain these records for 5 years following the
end of the calendar year covered by the records.
(8) Annual report. You must submit an annual report that includes
the information required by paragraph (e)(7) for the preceding calendar
year to your issuing Migratory Bird Permit Office by the date required
on your permit. You may complete Service Form 3-202-4, or submit your
annual report from a database you maintain, provided your report
contains all, and only, the information required by Form 3-202-4.
(9) At the discretion of the Regional Director, we may stipulate on
the face of your permit additional conditions compatible with the
permit conditions set forth in this section, to place limits on numbers
and/or types of birds you may possess under your permit, to stipulate
authorized location(s) for your rehabilitation activities, or otherwise
specify permitted activities, based on your experience and facilities.
(f) How does this permit apply to oil and hazardous waste spills?
Prior to entering the location of an oil or hazardous material spill,
you must obtain authorization from the U.S. Fish and Wildlife Service
Field Response Coordinator or other designated Service representative
and obtain permission from the On-Scene Coordinator. All activities
within the location of the spill are subject to the authority of the
On-Scene Coordinator. The U.S. Fish and Wildlife Service is responsible
for the disposition of all migratory birds, dead or alive.
(1) Permit provisions in oil or hazardous material spills. (i) In
addition to the rehabilitation permit provisions set forth in paragraph
(b) of this section, when under the authority of the designated U.S.
Fish and Wildlife Service representative this permit further authorizes
you to temporarily possess healthy, unaffected birds for the purpose of
removing them from imminent danger.
(ii) This permit does not authorize salvage of dead migratory
birds. When dead migratory birds are discovered, a Service law
enforcement officer must be notified immediately in order to coordinate
the handling and collection of evidence. Contact information for your
local Service Law Enforcement office is listed on your permit and on
the Internet at http://offices.fws.gov. The designated Service
representative will have direct control and responsibility over all
live migratory birds, and will coordinate the collection, storage, and
handling of any dead migratory birds with the Service's Division of Law
(iii) You must notify your issuing Migratory Bird Permit Office of
any migratory birds in your possession within 24 hours of removing such
birds from the area.
(2) Conditions specific to oil and hazardous waste spills. (i)
Facilities. Facilities used at the scene of oil or hazardous waste
spills may be temporary and/or mobile, and may provide less space and
protection from noise and disturbance than facilities authorized under
paragraph (e)(1) of this
section. Such facilities should conform as closely as possible with the
facility specifications contained in the Service policy titled Best
Practices for Migratory Bird Care During Oil Spill Response.\2\
\2\ You can obtain copies of this document by writing to the
U.S. Fish and Wildlife Service, Division of Environmental Quality,
4401 North Fairfax Drive, MS 322, Arlington, VA, 22203.
(ii) Subpermittees. In cases of oil and hazardous waste spills,
persons who assist with cleaning or treating migratory birds at the on-
scene facility will not be required to have a rehabilitation permit or
be a subpermittee; however, volunteers must be trained in rescue
protocol for migratory birds affected by oil and hazardous waste
spills. A permit (or subpermittee designation) is required to perform
extended rehabilitation of such birds, after initial cleaning and
treating, at a subsequent location.
(g) Will I also need a permit from the State in which I live? If
your State requires a license, permit, or other authorization to
rehabilitate migratory birds, your Federal migratory bird
rehabilitation permit will not be valid if you do not also possess and
adhere to the terms of the required State authorization, in addition to
the Federal permit. Nothing in this section prevents a State from
making and enforcing laws or regulations consistent with this section
that are more restrictive or give further protection to migratory
(h) How long is a migratory bird rehabilitation permit valid? Your
rehabilitation permit will expire on the date designated on the face of
the permit unless amended or revoked. No rehabilitation permit will
have a term exceeding 5 years.
(i) Will I need to apply for a new permit under this section if I
already have a special purpose permit to rehabilitate migratory birds,
issued under Sec. 21.27 (Special purpose permits)? (1) If you had a
valid Special Purpose--Migratory Bird Rehabilitation Permit issued
under Sec. 21.27 on November 26, 2003, your permit will remain valid
until the expiration date listed on its face. If you renew your permit,
it will be issued under this section.
(2) If your original permit authorization predates permit
application procedures requiring submission of photographs and diagrams
for approval of your facilities, and your facilities have never been
approved by the migratory bird permit office on the basis of such
photographs and diagrams, you must submit photographs and diagrams of
your facilities as part of your renewal application. If those
facilities do not meet the criteria set forth under this section, your
permit may be renewed for only 1 year. We will re-evaluate your
facilities when you seek renewal in a year. If you have made the
improvements necessary to bring your facilities into compliance with
paragraph (e)(1) of this section, and the other criteria within this
section for permit issuance are met, your permit may be renewed for up
to the full 5-year tenure.
(3) If your facilities have already been approved on the basis of
photographs and diagrams, and authorized under a valid Sec. 21.27
special purpose permit, then they are preapproved to be authorized
under your new permit issued under this section, unless those
facilities have materially diminished in size or quality from what was
authorized when you last renewed your permit, or unless you wish to
expand the authorizations granted by your permit (e.g., the number or
types of birds you rehabilitate). Regulations governing permit renewal
are set forth in Sec. 13.22 of this chapter.
PART 22--EAGLE PERMITS
7. 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-
8. Amend Sec. 22.11 by revising the first sentence to read as follows:
Sec. 22.11 What is the relationship to other permit requirements?
You may not take, possess, or transport any bald eagle (Haliaeetus
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts,
nests, or eggs of such birds, except as allowed by a valid permit
issued under this part, 50 CFR part 13, and/or 50 CFR part 21 as
provided by Sec. 21.2, or authorized under a depredation order issued
under subpart D of this part. * * *
* * * * *
Dated: October 14, 2003.
Acting Assistant Secretary for Fish and Wildlife and Parks, Department
of the Interior.
[FR Doc. 03-26823 Filed 10-24-03; 8:45 am]
BILLING CODE 4310-55-P