[Federal Register Volume 88, Number 105 (Thursday, June 1, 2023)]
[Proposed Rules]
[Pages 35809-35821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11652]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 19, 21, and 22
[Docket No. FWS-HQ-MB-2022-0023; FF09M30000-223-FXMB12320900000]
RIN 1018-BC76
Regulatory Authorizations for Migratory Bird and Eagle Possession
by the General Public, Educators, and Government Agencies
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
amend our regulations to revise current regulatory authorizations and
add new regulatory authorizations for possession of migratory birds and
eagles and other purposes. These proposed changes would more
efficiently and appropriately authorize the general public, educators,
and government agency employees to possess birds and eagles in certain
specific situations while meeting our obligations under the Migratory
Bird Treaty Act and the Bald and Golden Eagle Protection Act. We also
propose a change to the Airborne Hunting Act regulations to clarify
what Federal authorizations may be used to comply with that statute.
DATES: This proposed rule is available for public comment through July
31, 2023.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to the Service Information Collection Clearance Officer, U.S. Fish and
Wildlife Service (see ``Information Collection'' section below under
ADDRESSES) by July 31, 2023.
ADDRESSES: Comment submission: You may submit written comments on this
proposed rule and draft environmental review by one of the following
methods:
Electronically at the Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow the instructions for submitting
comments to Docket No. FWS-HQ-MB-2022-0023.
By hard copy via U.S. mail: Public Comments Processing,
Attn: FWS-HQ-MB-2022-0023; U.S. Fish and Wildlife Service; MS: PRB
(JAO/3W); 5275 Leesburg Pike; Falls Church, VA 22041-3803.
We will post all comments on https://www.regulations.gov, including
any personal information you provide. See Public Availability of
Comments below.
Information Collection Requirements: Send your comments on the
information collection request to the Service Information Collection
Clearance Officer, U.S. Fish and Wildlife Service, by email to
Info_Coll@fws.gov; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803. Please reference OMB Control Number 1018-
BC76 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director-
Migratory Birds Program, U.S. Fish and Wildlife Service, telephone:
703-358-2606, email: MB_mail@fws.gov. Individuals in the United States
who are deaf, deafblind, hard of hearing, or have a speech disability
may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications
relay services. Individuals outside the United States should use the
relay services offered within their country to make international calls
to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service is the Federal agency delegated
with the primary responsibility for managing migratory birds, including
bald eagles and golden eagles. Our authority derives primarily from the
Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703-12 (MBTA),
which implements conventions with Great Britain (for Canada), Mexico,
Japan, and the Russian Federation. The MBTA protects certain migratory
birds from take, except as permitted under the MBTA. We implement the
provisions of the MBTA through regulations in parts 10, 13, 20, 21, and
22 of title 50 of the Code of Federal Regulations (CFR). Regulations
pertaining to migratory bird permits are set forth at 50 CFR part 21.
In addition, the Bald and Golden Eagle Protection Act, 16 U.S.C. 668-
668d (hereafter referred to as the Eagle Protection Act), prohibits
take of bald eagles and golden eagles except pursuant to Federal
regulations. The Eagle Protection Act authorizes the Secretary of the
Interior to issue regulations to permit the ``taking'' of eagles for
various purposes, including the protection of ``other interests in any
particular locality'' (16 U.S.C. 668a), provided the taking is
compatible with the preservation of eagles. Regulations pertaining to
eagle permits are set forth at 50 CFR part 22.
The Service has long authorized activities under regulatory
authorizations. The origins of the regulatory authorization ``general
exceptions to permit requirements'' (50 CFR 21.12) can be traced back
as far as 1944. This proposed rulemaking action would improve
organization and transparency by redesignating the existing regulatory
authorizations codified at 50 CFR 21.12(a)-(d) to their own sections.
The Service also proposes new regulatory authorizations. Finally,
[[Page 35810]]
we propose to modify the limitations on permits under the Airborne
Hunting Act regulations (50 CFR part 19) to support emerging uses of
technology for bird conservation.
Proposed Rule
We propose to revise existing regulatory authorizations and add new
regulatory authorizations by amending various provisions in the
regulations governing migratory bird permits (50 CFR part 21) and the
regulations governing eagle permits (50 CFR part 22). Additional
proposed amendments to 50 CFR parts 21 and 22 would update references
to 50 CFR 21.12. We also propose to add a definition for ``humane and
healthful conditions'' to 50 CFR 21.6 and 22.6, remove the current
regulatory authorization for the possession of live migratory birds,
and make clarifying changes to Federal authorizations under Airborne
Hunting Act regulations (50 CFR 19.21). We describe each of the
proposed regulations in more detail below in this preamble.
Regulatory authorizations are regulations that establish
eligibility criteria and conditions for the take or possession of
migratory birds by an entity without requiring a permit to conduct
those activities. Regulatory authorizations can include conditions and
recordkeeping, reporting, and inspection requirements but otherwise
have a relatively low administrative burden and require little to no
interaction with the Service. Regulatory authorizations are most
appropriate for situations that have straightforward eligibility
criteria, do not require case-by-case customization of conditions, and
pose a low risk to migratory bird populations. Entities that are
eligible for a regulatory authorization must comply with the required
conditions, including records and reporting requirements, and are
subject to enforcement for noncompliance.
The Service proposes modifications to five existing regulatory
authorizations (currently in 50 CFR 21.12(a)-(d) and indicated with
``proposed for revision'' in the preamble headings below). These
modifications clarify language in these existing authorizations that is
unclear or has created unintended restrictions or allowances. In this
rulemaking, the Service also proposes new regulatory authorizations.
These regulatory authorizations are for activities currently authorized
under existing permit types for the following purposes: salvage,
activities by agency natural resource employees, and exhibition of
eagle specimens. The proposed regulations are not authorizing a new
activity: Instead, they are proposing to change the authorization
mechanism from a permit to a regulatory authorization. After decades of
issuance, these permit types have straightforward eligibility criteria,
and the permit conditions do not require case-by-case customization,
making them appropriate for a regulatory authorization.
General Public--Birds in Buildings Authorization (Proposed for
Revision)
Current regulations include a regulatory authorization that
authorizes any person to remove a migratory bird from the interior of a
building or structure (50 CFR 21.12(d)). We propose to redesignate this
regulation to 50 CFR 21.14 and make clarifying revisions. We propose to
expand the authorization from the current text of ``residence or a
commercial or government building'' to ``residence, business, or
similar human-occupied building or structure.'' We propose to amend
current text that inadvertently excluded structures similar to
buildings, such as belltowers. It is beneficial to birds and humans for
us to allow removal of birds unintentionally trapped in the interior of
any building or structure. As proposed, this authorization would not
apply to birds or nests on the exterior of a building or structure.
Removal of active nests on the exterior of buildings would continue to
require a permit, such as in exterior eaves or bridges. We also propose
additional text that would require any removal of birds to be
undertaken under humane and healthful conditions and also include
sources for technical assistance.
General Public--Salvage Authorization
Current regulations require a permit for any person to salvage
(i.e., pick up) migratory birds found dead, including parts, feathers,
nonviable eggs, and inactive nests. Salvage permits are currently
issued under the special purpose permits regulations (50 CFR 21.95). We
propose a new authorization at 50 CFR 21.16 for any person to salvage
migratory birds found dead. Federal, State, or local guidance for safe
handling and disposal of dead wildlife should be followed. All birds
salvaged must be promptly disposed of by donation to a person or entity
authorized to receive them, such as for purposes of education or
science, or disposed of by complete destruction. Any person may contact
the Service Migratory Bird Program to determine if an entity is
authorized to receive donated birds. Birds may not be retained for
personal use, sold, bartered, or traded.
We propose this authorization for two reasons. First, to address
one-time salvage situations such as: a person who finds a migratory
bird in good condition and seeks to put the remains to good use by
donation to a nature center; or a person who picks up a dead bird to
put it in the trash. It does not make sense to prohibit these everyday
activities or to require a permit to conduct them. Second, this
proposed regulatory authorization would also relieve the administrative
burden of the permitting process for both the Service and for those who
salvage birds with some regularity. Salvage permits have minimal
issuance criteria and no customized permit conditions. To reduce the
administrative burden for the public and the Service, we propose to
replace the current permit requirement for salvage with a regulatory
authorization.
The Service recognizes that bald eagles and golden eagles hold
cultural significance for many Native American Tribes. In honor of our
trust relationship with Native American Tribes, the proposed regulation
limits the disposition of (i.e., what can be done with) salvaged bald
eagles and golden eagles. Current salvage permit conditions require
that salvaged eagles, parts, and feathers be disposed of by donation to
the Service's National Eagle Repository in Commerce City, CO, and that
the Repository be contacted for donation instructions. Currently,
persons without salvage permits who find an eagle must notify a local,
State, or Federal wildlife agency that has authorization to salvage the
eagle, parts, or feathers. The agency then sends the items to the
National Eagle Repository. However, most wildlife agencies have limited
capacity to engage in these activities, which results in many found
eagles, parts, and feathers failing to reach the National Eagle
Repository. The proposed regulation would help relieve this problem and
increase the availability of eagles to members of federally recognized
Tribes through the National Eagle Repository.
We propose to continue to require that any salvaged bald eagles or
golden eagles be donated to the National Eagle Repository and to allow
the National Eagle Repository to determine if eagles, parts, or
feathers are unsuitable for distribution. However, the proposed rule
provides that, if determined unsuitable by the National Eagle
Repository, those items could be donated for scientific or exhibition
purposes or completely destroyed. The proposed rule does not change the
authorization for Native American
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Tribes to retain eagles with a Tribal eagle remains permit (50 CFR
22.60).
Public Institutions--Educational Use of Specimens Authorization
(Proposed for Revision)
Current regulations authorize certain public entities to possess
migratory bird specimens (50 CFR 21.12(b)(1)). We propose to
redesignate this regulation to 50 CFR 21.18 and make the following
revisions: We propose to restrict this authorization to possession of
specimens only (i.e., exclude live birds) and to expand this
authorization to all public entities (as defined in 50 CFR 10.12). We
propose additional revisions to incorporate current universal permit
conditions required in possession permits for educational use under the
special purpose regulations at 50 CFR 21.95.
We propose to adopt the following interpretation of the term
``public'' as part of this rulemaking. ``Public'' in relation to a
museum, zoological park, or scientific or educational institution is
currently defined in our general permit regulations at 50 CFR 10.12 as
referring to museums, zoological parks, and scientific or educational
institutions that are open to the general public and are either
established, maintained, and operated as a governmental service or are
privately endowed and organized but not operated for profit. We would
interpret the following terms used in this definition of ``public'' as
follows:
``Open to the general public'' means an entity that is
open on a regularly scheduled basis during publicly posted hours of at
least 400 hours per calendar year or conducts at least 12 public
educational programs per year. The entity may charge a fee for entry or
to attend programs. A program would not qualify as a public program if
access is restricted to a limited group of individuals.
``Governmental service'' means services provided by
government agencies, including Federal, State, Tribal, or local
agencies, as well as services provided by entities operating on behalf
of a government agency, such as contractors. Those operating on behalf
of an agency must have documentation (e.g., a letter from the agency)
authorizing operation.
``Nonprofit organization'' means an entity that is
privately endowed (i.e., funded) and Internal Revenue Service tax-
exempt under 26 U.S.C. 501(c)(3).
The term ``endowed'' is synonymous with ``funded'' and
does not require a minimum endowment to qualify as public. The Service
recommends that an entity's financial health and stability should be
sufficient to cover the operational costs associated with the
activities conducted as well as costs that will cover migratory bird or
eagle placement in the event the entity must close. In future
rulemaking, the Service may consider a minimum endowment requirement
for certain permit types, such as those involving the possession of
live birds. Individuals and for-profit entities do not qualify as
``public.''
This proposed regulation would not authorize the possession of live
migratory birds without a permit. The current regulations at 50 CFR
21.12(b)(1) authorize possession of live birds without a permit in
certain situations for qualifying entities. We are proposing to
eliminate general authorization to possess live birds and instead
require a permit for those activities. Elsewhere in this issue of the
Federal Register, the Service has also published an advance notice of
proposed rulemaking regarding the exhibition of live migratory birds
and eagles for educational purposes (RIN 1018-BF58). Any entity
currently operating under 50 CFR 21.12(b)(1) may continue activities
currently authorized by the regulatory authorization until the Service
finalizes the proposed educational use regulations. Certain aspects of
this proposed rulemaking must be finalized before promulgating the
educational use rulemaking. For that reason, it is not feasible to
leave the current regulatory authorization for live bird possession in
place until the educational use regulations are finalized. Therefore,
the Service proposes to remove the existing regulatory authorization
for live possession of migratory birds but allow currently excepted
entities to continue operating as authorized until the educational use
regulations are finalized, at which time those entities would have to
comply with the new regulations.
Public Institutions--Authorization for Exhibition Use of Eagle
Specimens
Currently, an eagle exhibition permit (50 CFR 22.50) is required to
possess eagle specimens for exhibition purposes, including mounts,
feathers, parts, eggs, and nests. These permits are limited under the
Eagle Protection Act to public museums, public scientific societies, or
public zoological parks (16 U.S.C. 668a). We propose a regulatory
authorization for public museums, public scientific societies, and
public zoological parks to possess eagle specimens for exhibition use
without a permit. This regulatory authorization does not include any
taking of eagles, and any eagle specimens must have been legally
obtained under the terms of a part 22 eagle permit. These permits have
straightforward issuance criteria and conditions that are standard for
all permittees. The majority of these permittees are government
entities that display a single, mounted eagle in a visitor center or
building entrance. To reduce the administrative burden for these public
entities and the Service, we propose to remove the permit requirement
and instead authorize possession under a regulatory authorization. We
propose to create a new subpart in part 22 for this regulatory
authorization that will have a similar structure to part 21, which sets
forth regulations for the exceptions to permit requirements in subpart
B.
We anticipate there would be no change in the availability of
eagles for members of federally recognized Tribes as a result of this
proposed action. Nearly all eagle specimens for exhibition use are
already in possession. Any eagle specimens newly acquired for
exhibition use must be approved by the National Eagle Repository as not
suitable for Native American distribution. Authorization from the
National Eagle Repository must accompany any newly acquired specimens
before transfer to exhibition use.
The Eagle Protection Act (16 U.S.C. 668a) restricts authorization
for scientific or exhibition purposes to ``public museums, scientific
societies, and zoological parks.'' The Service uses a plain-English
interpretation of ``museum'' and ``zoological park,'' by which a public
museum is a building or place where objects are curated for and
displayed to the public, and a zoological park is a place where living
animals are kept in enclosures and displayed to the public. The Eagle
Protection Act's inclusion of the term ``scientific societies'' does
not readily have a plain-English interpretation. The Service proposes
to adopt the following interpretation: A public scientific society is
any entity that, as part of its purpose, promotes public knowledge
about science or conducts research and makes data and findings
available to the public. Public scientific societies may include
government agencies, schools and universities, and nongovernmental
organizations. Qualifying as a public museum, scientific society, or
zoological park is only one of the criteria necessary to conduct eagle
exhibition or eagle scientific collecting activities. We would continue
to maintain appropriate standards for evaluating an entity's
qualifications relative to the authorization requested.
[[Page 35812]]
Licensed Veterinarians Authorization (Proposed for Revision)
A regulatory authorization currently authorizes licensed
veterinarians to provide veterinary care of sick, injured, and orphaned
migratory birds including eagles (50 CFR 21.12(c)). We propose to
redesignate this regulation to 50 CFR 21.20 and make the following
revisions: (1) edit the existing language to improve readability, (2)
clarify what is included in veterinary care, and (3) clarify
expectations regarding disposition of live and dead migratory birds.
The proposed language is consistent with the rehabilitation regulations
(50 CFR 21.76).
Mortality Event Authorization (Proposed for Revision)
Regulations currently authorize natural resource and public health
agency employees to address avian disease outbreaks (50 CFR
21.12(b)(2)) without a permit. We propose to redesignate this
regulation to 50 CFR 21.32 and make the following revisions. We propose
to clarify the existing language and expand the current scope of this
authorization from disease outbreaks to all mortality events. A
mortality event is an unforeseen event that kills an unexpectedly high
number of individual birds in a particular location over a short period
of time. The dead birds must exhibit similar pathological behavior
prior to death or similar clinical signs. We propose to adopt the U.S.
Geological Survey--National Wildlife Health Center's interpretation of
``unexpectedly high'' as five or more individuals (see usgs.gov/centers/nwhc). The National Wildlife Heath Center is the science lead
in the Department of Interior on the detection, control, and prevention
of wildlife disease in the United States. The primary use of this
regulatory authorization is to respond to avian infectious disease
outbreaks, such as avian influenza or West Nile virus. Timely response
is necessary to identify the cause of the outbreak, contain its spread,
and reduce exposure and potential infection of humans, livestock, other
domestic animals, and wildlife.
We propose to expand this authorization from infectious disease
outbreaks to include other mortality events because many mortality
events (e.g., those caused by toxins or mass starvation) may have an
unclear cause at the time of discovery. A timely response is necessary
to ensure public safety until the cause can be determined. The proposed
authorization also clarifies that take of asymptomatic birds for
activities such as disease monitoring is not covered by this regulatory
authorization. Instead, agencies conducting disease monitoring of
asymptomatic, live birds should obtain a scientific collecting permit
(50 CFR 21.73).
Natural Resource Agency Employees Authorization
Service and State wildlife agency employees are authorized under
special purpose permits (50 CFR 21.95) to salvage birds, use migratory
bird specimens for educational programs, transport birds to medical
care, and relocate birds in harm's way. The Service proposes to
establish a new regulatory authorization for these activities at 50 CFR
21.34 and no longer require a permit. We propose this authorization to
better facilitate agency employees conducting routine activities and
reduce the administrative burden of the permit process on the Service
and other natural resource agencies. The proposed regulation adopts the
same permit conditions that the Service currently uses when issuing
permits to employees of the Service and State wildlife agencies under
the special purpose regulations at 50 CFR 21.95.
Currently, the Service issues permits to Federal and State wildlife
agencies to conduct the activities as just described. The proposed
authorization also includes natural resource agency employees of U.S.
Territories and federally recognized Tribes. Most of the activities
authorized under current permits are covered by the other proposed
authorizations in subpart B, such as salvage (proposed 50 CFR 21.16),
educational use (proposed 50 CFR 21.18 and 22.15), transportation to
medical care (50 CFR 21.76), and relocation from inside of structures
(proposed 50 CFR 21.14). This proposed authorization would authorize
natural resource employees to possess sick, injured, or orphaned birds
for up to 72 hours for transport to care and to humanely euthanize
birds, if necessary. Natural resource agency employees are often in
remote areas and are in the best position to provide humane care,
without increasing bird stress by transporting long distances.
Consistent with current permit conditions, this proposed regulatory
revision would authorize the salvage of birds and relocation when birds
or humans are at risk.
Law Enforcement Authorization (Proposed for Revision)
Regulations currently authorize Department of the Interior law
enforcement personnel (50 CFR 21.12(a)) to conduct certain activities
without a permit. We propose to redesignate this regulation to 50 CFR
21.40 and clarify that this authorization pertains to all law
enforcement agencies authorized to enforce laws consistent with the
MBTA or Eagle Protection Act. This authorization would be limited to
personnel performing official law enforcement duties. We also propose
allowing law enforcement agents to temporarily designate authority to
another individual to acquire, possess, transport, or dispose of
migratory birds on behalf of law enforcement in certain circumstances--
for example, to pick up and dispose of a deceased bird in a remote
area. The temporary delegation should be recorded in writing by the law
enforcement agent delegating the authority. The document must record
the name and contact information of both the individual authorized and
the authorizing agent as well as the dates authorized and clearly
explain the extent of the actions the individual is authorized to
perform.
Humane and Healthful Conditions Definition
Regulations currently require any live wildlife to be possessed
under ``humane and healthful conditions'' (50 CFR 13.41). We propose
adding a definition to the definitions sections for migratory bird
permits (50 CFR 21.6) and eagle permits (50 CFR 22.6) to define
``humane and healthful conditions'' as the phrase applies to the
possession of live migratory birds and live bald eagles and golden
eagles. The definition would be identical for both part 21 and part 22.
The proposed definition includes both temporary (e.g., trap-release
activities) and long-term (e.g., rehabilitation or exhibition
activities) possession. The proposed definition also clarifies that
humane and healthful conditions include all aspects of possession and
care, such as handling, housing, feeding, watering, sanitation,
ventilation, shelter, protection from predators and vermin, enrichment,
veterinary care, and euthanasia.
Rehabilitation Regulations
We propose to remove the reference to the Minimum Standards for
Wildlife Rehabilitation (2000) as guidelines for evaluating the
adequacy of caging dimensions (50 CFR 21.76(e)(1)). The National
Wildlife Rehabilitators Association and International Wildlife
Rehabilitation Council recently published an updated Standards for
Wildlife Rehabilitation (2021). Rather than proposing to amend the
regulation each time the National Wildlife Rehabilitators Association
updates its standards, we will propose to develop a
[[Page 35813]]
public policy that identifies Standards for Wildlife Rehabilitation
(2021) as the Service's standard guidance document for use in
evaluating humane and healthful conditions at rehabilitation
facilities.
Airborne Hunting Act Regulations
The harassment of migratory birds does not require authorization
under the MBTA. However, the Airborne Hunting Act (AHA; 16 U.S.C. 742j-
1) prohibits the use of an aircraft to harass any wildlife, which
includes migratory birds (50 CFR 19.11). Current regulations authorize
the harassment of migratory birds under the AHA (50 CFR 19.21), but
authorization is currently limited to activities that can be authorized
under depredation permits (50 CFR 21.100).
The regulations in 50 CFR part 19 have not been substantively
revised since they were issued on January 4, 1974. The AHA defines
``aircraft'' as ``any contrivance used for flight in the air'' (16
U.S.C. 742j-1(c)). In 1974, the meaning of an ``aircraft'' was limited
to vehicles controlled by an onboard pilot. More recently, the meaning
of ``aircraft'' has expanded to reflect the use of unmanned vehicles
including drones.
Unmanned Aircraft Systems (UAS) are classified as ``aircraft'' by
the U.S. Department of the Interior's Office of Aviation Services
(Information Bulletin 13-05) and meet the AHA's definition; however,
they are functionally very different from onboard-piloted aircraft. The
use of UAS has expanded greatly and was understandably not envisioned
at the time of the 1974 rulemaking. Many uses of UAS are beneficial to
migratory bird conservation and safer for humans but fall outside the
scope of depredation permits. For example, seabird research on rocky
outcrops and islands has been limited because human access to these
areas is difficult or unsafe. Human presence can also disturb the
colony. However, UAS have been successfully used in these environments
to count seabirds and monitor success. Raptors nests on human
infrastructure such as towers provide another example where UAS use is
beneficial to both humans and birds. Project proponents often must
alter work on infrastructure if a nest has eggs or chicks present;
however, humans climbing infrastructure to identify nest status can be
unsafe for humans and birds if adult birds attempt to defend the nest.
UAS can be used to quickly view into the nest and determine nest
status. The Service considers use of UAS in both of these examples to
be better for migratory birds, safer for humans, and also outside the
scope of what can currently be permitted under depredation permits.
We propose to continue authorizing aircraft use (including UAS use)
that may potentially harass migratory birds under migratory bird
permits or eagle permits. However, we propose to expand this
authorization to include any appropriate part 21 or part 22 permit, not
just depredation permits. This proposed change will provide the
necessary mechanisms to authorize the new and emerging uses of UAS that
are consistent with the AHA's exception for permits that authorize
``administration or protection of land, water, wildlife, livestock,
domesticated animals, human life, or crops'' (16 U.S.C. 742j-1(b)(1)).
Disqualifying Factors
Part 13 describes general permit procedures, including issuance of
permits (Sec. 13.21). This regulation includes factors that disqualify
a person from receiving a permit. These factors include conviction of a
felony violation of the MBTA or Eagle Protection Act, prior revocation
of permits for certain reasons, failure to pay fees and fines, and
failure to submit reports. The Service considers regulatory
authorizations to constitute a permit, as defined in 50 CFR 10.12. The
regulation is the document issued by the Service which describes,
authorizes, and limits the activity and is signed by the authorized
official, the DOI Assistant Secretary of Fish, Wildlife, and Parks. To
clarify that disqualifying also apply to regulatory authorizations, we
propose adding Sec. 21.5 and Sec. 22.5, which would adopt the part 13
disqualifying factors for all activities authorized by permit,
including regulatory authorizations in part 21 and part 22.
Editorial Corrections
Because we are redesignating the regulatory authorizations to new
CFR sections, we need to correct cross-references to these sections in
other parts of our regulations. Affected sections include
rehabilitation permits (Sec. 21.76), falconry standards and falconry
permitting (Sec. 21.82), raptor propagation permitting (Sec. 21.85),
and eagle scientific and exhibition permits (Sec. 22.50). We are not
making any changes to the falconry regulations or raptor propagation
regulations beyond updating regulation references. These proposed
updates are administrative in nature; they do not change the species
protected by the regulations or the permit requirements or any other
requirements of the MBTA or its implementing regulations.
Public Availability of Comments
The public comment period begins with the publication of this
document in the Federal Register and will continue through the date set
forth above in DATES. Written comments that are received or postmarked
by that date will become part of the public record associated with this
proposed rulemaking action. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that the entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Management and
Budget, Office of Information and Regulatory Affairs (OIRA) will review
all significant rules. OIRA has determined that this proposed rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 and
calls for improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small businesses,
small organizations, and small
[[Page 35814]]
government jurisdictions. However, no regulatory flexibility analysis
is required if the head of an agency certifies the rule would not have
a significant economic impact on a substantial number of small
entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule would not have a significant economic impact on a
substantial number of small entities. We have examined this proposed
rule's potential effects on small entities as required by the
Regulatory Flexibility Act and determined that this action would not
have an economic impact on any small entities. This proposed rule is
deregulatory in nature. It would expand the scope of current regulatory
authorizations as well as eliminate current permits by creating new
authorizations. Thus, we certify that this proposed rule would not have
a significant economic impact on a substantial number of small
entities.
This is not a major rule under SBREFA (5 U.S.C. 804(2)). This
proposed rule would not have an annual effect on the economy of $100
million or more; would not cause a major increase in costs or prices
for consumers, individual industries, or Federal, State, or local
government agencies, or geographic regions; and would not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This proposed rule would not ``significantly or uniquely''
affect small governments. A small government agency plan is not
required. The regulatory revisions would not affect small government
activities in any significant way.
b. This proposed rule would not produce a Federal mandate of $100
million or greater in any year. Therefore, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, the proposed rule would not have
significant takings implications. This proposed rule does not contain a
provision for taking of private property, so a takings implication
assessment is not required. This proposed rule is deregulatory in
nature. It would expand the scope of current authorizations as well as
eliminate current permits by creating new authorizations.
Federalism
This proposed rule would not have sufficient federalism effects to
warrant preparation of a federalism summary impact statement under E.O.
13132. It would not interfere with the States' abilities to manage
themselves or their funds. No significant economic impacts are expected
to result from the proposed regulations changes.
Civil Justice Reform
In accordance with E.O. 12988, the Office of the Solicitor has
determined that this proposed rule would not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order.
Paperwork Reduction Act
This proposed rule contains new information collections. All
information collections require approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA; 44
U.S.C. 3501 et seq.). We may not conduct or sponsor, and you are not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. We will ask OMB to review and
approve the information collection requirements contained in this
rulemaking related to permit applications, reports, and related
information collections under the MBTA.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Comments that you submit in response to this proposed rulemaking
are a matter of public record. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
The information that we collect to determine eligibility to possess
migratory birds and eagles by the general public, educators, and
government agencies is the minimum necessary for us to determine if the
applicant meets/continues to meet issuance requirements for the
particular activity under the MBTA and Eagle Protection Act. The
proposed new information collection requirements identified below
require approval by OMB:
1. Written Petitions--Request for Waiver from Disqualification (50
CFR 21.5)--A conviction, or entry of a plea of guilty or nolo
contendere, for a felony violation of the Lacey Act (18 U.S.C. 42, as
amended), the Migratory Bird Treaty Act (16 U.S.C. 703-712), or the
Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) disqualifies
any such person from exercising the authorization granted by regulation
or permit under part 21, unless such disqualification has been
expressly waived by the Director in response to a written petition.
2. Obtaining Landowner Permission to Access Land (50 CFR 21.16)--
Regulations do not grant land access. Authorized individuals requiring
access are responsible for obtaining permission from landowners when
necessary and for complying with other applicable laws.
3. 3rd Party Notifications--National Eagle Repository (50 CFR
21.16)--Authorized individuals who salvage a whole bald eagle or golden
eagle (eagle), part of an eagle (e.g., wing or tail), or feathers must
immediately contact the National Eagle Repository and follow the
Repository's instructions on transferring the eagle, parts, or feathers
to the Repository.
4. 3rd Party Notifications--Transfer of Live Migratory Birds (50
CFR 21.20)--Within 48 hours after hospitalization is no longer
required, live migratory birds must be transferred to a federally
permitted migratory bird rehabilitator. If unable to transfer a bird
within that time, authorized individuals must contact their regional
migratory bird
[[Page 35815]]
permit office for assistance in locating a permitted migratory bird
rehabilitator, authorization to continue care, or a recommendation to
euthanize the bird.
5. 3rd Party Notifications--Endangered and Threatened Wildlife (50
CFR 21.20)--Licensed veterinarians must notify the appropriate
Ecological Services Office within 24 hours of receiving a migratory
bird that is also on the List of Endangered and Threatened Wildlife (50
CFR 17.11).
6. Requests for Written Authorization--National Eagle Repository
(50 CFR 22.15)--Eagle specimens salvaged from the wild after [EFFECTIVE
DATE OF FINAL RULE] must have written authorization from the National
Eagle Repository for exhibition use.
7. Agency Designation Letter (50 CFR 21.34)--Individuals under the
direct supervision of an agency employee (e.g., volunteers or agents
under contract to the agency) may, within the scope of their official
duties, conduct the activities authorized by this authorization. An
authorized individual must have a designation letter from the agency
describing the activities that may be conducted by the individual and
any date and location restrictions that apply.
8. Law Enforcement Authorization (50 CFR 21.40)--Law enforcement
personnel may designate authorization to non-law-enforcement personnel
to acquire, possess, transport, or dispose of migratory birds on the
behalf of law enforcement under this authorization. Designations must
include the name and contact information of the individual designated,
dates valid, activities authorized, and name and contact information of
the authorizing agent.
9. 3rd Party Notifications--Federally Permitted Rehabilitator (50
CFR 21.14, 21.34)--Authorized individuals must immediately contact a
federally permitted migratory bird rehabilitator and follow the
rehabilitator's instructions when:
a. Sec. 21.14--Any birds removed by trapping must be immediately
released to the wild in a humane and healthful manner, unless the bird
becomes exhausted, ill, injured, or orphaned. In that case, the
authorized individual must immediately contact a federally permitted
migratory bird rehabilitator and follow the rehabilitator's
instructions.
b. Sec. 21.14--Authorized individuals may remove nests, eggs, and
nestlings from the interior of a human-occupied building or structure.
They are encouraged to seek the assistance of a federally permitted
migratory bird rehabilitator or their regional Migratory Bird Permit
Office prior to removing eggs or nestlings.
c. Sec. 21.34--Natural resource agency employees may transport
sick, injured, or orphaned birds in accordance with Sec. 21.76(a). If
transport is not feasible within 24 hours, they must follow the
instructions of a federally permitted migratory bird rehabilitator to
provide supportive care, retain in an appropriate enclosure for up to
72 hours, or euthanize the birds.
10. Tagging Requirements (50 CFR 21.16, 21.18)--
a. Sec. 21.16--Specimens intended for donation with the date,
location of salvage, and the name and contact information of the person
who salvaged the specimen. The tag must remain with the specimen.
b. Sec. 21.18--Each migratory bird specimen must remain tagged
with the species, date, location, name of the donor, and donor's
authorization for acquisition. Specimen tags may be temporarily removed
during educational programs.
c. Sec. 22.15--Each eagle specimen must remain tagged with the
species, date, location, name of the donor, and the donor's
authorization for acquisition. Specimen tags may be temporarily removed
during educational programs.
11. Law Enforcement Notifications (50 CFR 21.16, 21.32)--
a. Sec. 21.16--Authorized individuals must notify the Service
Office of Law Enforcement if illegal activity is suspected or if five
or more birds are found dead and there is a risk of mortality due to
disease.
b. Sec. 21.32--Authorized individuals investigating mortality
events must notify the Service Office of Law Enforcement if illegal
activity is suspected.
12. Verification of Legal Acquisition (50 CFR 21.18, 22.15)--
a. Sec. 21.18--Migratory bird specimens must be acquired from
persons authorized by permit or regulation to possess and donate such
items. Authorized individuals are responsible for ensuring specimens
were legally acquired.
b. Sec. 22.15--Bald eagle and golden eagle specimens must be
acquired from persons authorized by permit or regulation to possess and
donate such items. Authorized individuals are responsible for ensuring
specimens were legally acquired.
13. Records Retention Requirements (50 CFR 21.16, 21.18, 21.20,
22.15)--
a. Sec. 21.16--Authorized individuals must maintain records of all
donated birds, including eagles sent to the National Eagle Repository
for 5 years. Records must include species, specimen type, date,
location salvaged, and recipient. At any reasonable time upon request
by the Service, the authorized individual must allow the Service to
inspect any birds held under this authorization and to review any
records kept.
b. Sec. 21.18--Authorized individuals must maintain accurate
records of operations on a calendar-year basis and retain these records
for 5 years. Records must reflect the programs conducted, each specimen
in possession, and, if applicable, specimen disposition. At any
reasonable time upon request by the Service, the authorized individual
must allow the Service to inspect any migratory bird specimens held
under this regulatory authorization and review any records kept.
c. Sec. 21.20--Licensed veterinarians must keep records for 5
years of all migratory birds held and treated under this authorization,
including those euthanized. Records must include the species of bird,
the type of injury, the date of acquisition, the date of death, cause
of death, and disposition (e.g., live bird transferred, remains
destroyed, or remains donated). Authorized individuals must present
upon request of inspection such specimens and documents at any
reasonable time.
d. Sec. 21.34--Agencies must keep records for 5 years of
activities conducted under this authorization. The records must include
the species and number of birds, the type of activity, date, and
disposition.
e. Sec. 22.15--Authorized individuals must maintain accurate
records of operations on a calendar-year basis and retain these records
for 5 years. Records must reflect the programs conducted, each specimen
in possession, and, if applicable, specimen disposition. Exhibition use
of specimens under the regulations in this section authorizes the
Service to inspect any eagle specimens held under this regulatory
authorization and review any records kept at any reasonable time.
Authorized individuals must present such specimens and documents for
inspection upon request.
14. 3rd Party Notifications--Educational Programs (50 CFR 21.18)--
a. Sec. 21.18--Migratory bird specimens must be used for public
educational programs or held for public archival purposes. Programs
must include information about migratory bird ecology, biology, or
conservation.
b. Sec. 21.18--Specimens held for archival purposes must be
properly archived and readily accessible to the public for research
purposes.
c. Sec. 22.15--Eagle specimens must be used for public educational
programs or held for public archival purposes.
[[Page 35816]]
Programs must include information about eagle ecology, biology, or
conservation.
15. Notification Requirement--States (50 CFR 19.31)--Upon issuance
of a permit by a State to a person pursuant to this section, the
issuing authority will provide immediate notification to the Special
Agent in Charge having jurisdiction.
16. Notification Requirement--States (50 CFR 19.31)--Any State
issuing permits to persons to engage in airborne hunting or harassing
of wildlife or any State whose employees or agents participate in
airborne hunting or harassing of wildlife for purposes of administering
or protecting land, water, wildlife, livestock, domestic animals, human
life, or crops, shall file with the Director an annual report on or
before July 1 for the preceding calendar year ending December 31.
Title of Collection: Regulatory Authorizations for Migratory Bird
and Eagle Possession by the General Public, Educators, and Government
Agencies; 50 CFR parts 21 and 22.
OMB Control Number: 1018-New.
Form Numbers: None.
Type of Review: New.
Respondents/Affected Public: Individuals; private sector; and
State/local/Tribal governments.
Total Estimated Number of Annual Respondents: 4,001.
Total Estimated Number of Annual Responses: 4,001.
Estimated Completion Time per Response: Varies from 15 minutes to 1
hour, depending on activity.
Total Estimated Number of Annual Burden Hours: 3,111.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Nonhour Burden Cost: None.
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to Info_Coll@fws.gov. Please reference OMB Control Number
1018-BC76 in the subject line of your comments.
National Environmental Policy Act
We have analyzed this rule in accordance with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and Department
regulations at 43 CFR part 46. The proposed action is categorically
excluded from further NEPA consideration under the departmental
exclusion at 43 CFR 46.210 and as listed in 516 DM 8.5(C)(1): ``the
issuance, denial, suspension, and revocation of permits for activities
involving fish, wildlife, or plants regulated under 50 CFR Chapter I,
Subchapter B, when such permits cause no or negligible environmental
disturbance. These permits involve endangered and threatened species,
species listed under the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), marine mammals,
exotic birds, migratory birds, eagles, and injurious wildlife.'' The
Service considers regulatory authorizations, also called permit
exceptions, to be a type of permit. Permit is defined in 50 CFR 10.12,
and the Service considers the regulation to be the document issued by
the Service which describes, authorizes, and limits the activity. In
the case of regulations, the authorized official is the DOI Assistant
Secretary of Fish, Wildlife, and Parks. Therefore, promulgation of a
regulatory authorization that causes no or negligible environmental
disturbance falls within the categorical exclusion for permits.
Endangered and Threatened Species
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that the Secretary [of the Interior]
shall review other programs administered by the Secretary and utilize
such programs in furtherance of the purposes of this Act (16 U.S.C.
1536(a)(1)). It further states that the Federal agency must ``ensure
that any action authorized, funded, or carried out . . . is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). This proposed rule
would not affect endangered or threatened species or critical habitats.
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, we have
evaluated potential effects on federally recognized Indian Tribes and
have determined that this rule would not interfere with Tribes'
abilities to manage themselves, their funds, or Tribal lands. We add
provisions to expand Tribal authorization and self-governance.
Energy Supply, Distribution, or Use (Executive Order 13211)
E.O. 13211 addresses regulations that significantly affect energy
supply, distribution, and use, and requires agencies to prepare
statements of energy effects when undertaking certain actions. This
proposed rule is not a significant regulatory action under E.O. 13211,
and no statement of energy effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
List of Subjects
50 CFR Part 19
Aircraft, Fish, Hunting, Reporting and recordkeeping requirements,
Wildlife.
50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
Proposed Regulation Promulgation
For the reasons described in the preamble, we propose to amend
title 50, chapter I, subchapter B of the CFR, as set forth below:
PART 19--AIRBORNE HUNTING
0
1. The authority citation for part 19 continues to read as follows:
Authority: Fish and Wildlife Act of 1956, 85 Stat. 480, as
amended, 86 Stat. 905 (16 U.S.C. 742a-j-1).
0
2. Revise Sec. 19.21 to read as follows:
[[Page 35817]]
Sec. 19.21 Limitation on Federal permits.
No Federal permits will be issued to authorize any person to hunt,
shoot, or harass any wildlife from an aircraft, except for Federal
permits issued under part 21 or part 22 of this subchapter.
PART 21--MIGRATORY BIRD PERMITS
0
3. The authority citation for part 21 continues to read as follows:
Authority: 16 U.S.C. 703-712.
Subpart A--Introduction and General Requirements
0
4. Amend Sec. 21.4 by revising the section heading and paragraph (b)
to read as follows:
Sec. 21.4 Scope of regulations.
* * * * *
(b) The regulations in this part, except for Sec. 21.16 (salvage
authorization), Sec. 21.20 (licensed veterinarian authorization),
Sec. 21.32 (mortality event authorization), Sec. 21.34 (natural
resource agency employees authorization), Sec. 21.40 (law enforcement
authorization), Sec. 21.70 (banding or marking), Sec. 21.76
(rehabilitation permits), and Sec. 21.82 (falconry standards and
falconry permitting), do 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.
* * * * *
0
5. Add Sec. 21.5 to read as follows:
Sec. 21.5 Disqualifying factors.
A person is disqualified from exercising the authorization granted
by permit, including regulatory authorizations, under part 21, unless
waived by the Director in response to a written petition, if the
person:
(a) Has been convicted or plead guilty or nolo contendere for a
felony violation of the Lacey Act (18 U.S.C. 42, as amended), the
Migratory Bird Treaty Act (16 U.S.C. 703-712), or the Bald and Golden
Eagle Protection Act (16 U.S.C. 668-668d).
(b) Has had the same or similar authorization revoked (Sec. 13.28)
within the last 5 years.
(c) Has failed to pay required fees, penalties, or other money owed
to the United States. Disqualification is effective as long as the
deficiency exists, except, in the case of repeated failure to pay, the
Service notifiesy the person in writing of permanent disqualification.
(d) Has failed to submit timely, accurate, or valid reports as
required, as long as the deficiency exists. Disqualification is
effective as long as the deficiency exists, except, in the case of
repeated failure to meet reporting requirements, the Service notifies
the person in writing of permanent disqualification.
0
6. Amend Sec. 21.6 by adding a definition for ``Humane and healthful
conditions'' in alphabetic order to read as follows:
Sec. 21.6 Definitions.
* * * * *
Humane and healthful conditions means using methods supported by
the best available science that minimize fear, pain, stress, and
suffering of a migratory bird held in possession. This definition
applies during capture, possession (temporary or long term), or
transport. Humane and healthful conditions pertain to handling (e.g.,
during capture, care, release, restraint, and training), housing
(whether temporary, permanent, or during transport), shelter, feeding
and watering, sanitation, ventilation, protection from predators and
vermin, and, as applicable, enrichment, veterinary care, and
euthanasia.
* * * * *
Subpart B--Exceptions to Permit Requirements
0
7. Add Sec. 21.14 to read as follows:
Sec. 21.14 Birds in buildings authorization.
(a) Any person may, without a permit, humanely remove a migratory
bird from the interior of a residence, business, or similar human-
occupied building or structure under the conditions set forth in this
section. This authorization does not apply to birds or nests on the
exterior of buildings, such as siding or eaves, or to structures that
are not human-occupied, such as barns or bridges.
(b) This authorization is subject to the following conditions:
(1) Humane conditions. Any trapping, handling, transporting, or
release of migratory birds must be conducted under humane and healthful
conditions as defined in Sec. 21.6. You may not use adhesive traps
(such as glue traps) or any other method of capture likely to harm the
bird. For technical assistance, contact your regional Migratory Bird
Permit Office, USDA-Wildlife Services, or a federally permitted
migratory bird rehabilitator.
(2) Release. Any birds removed by trapping must be immediately
released to the wild in a humane and healthful manner, unless the bird
becomes exhausted, ill, injured, or orphaned. In that case, immediately
contact a federally permitted migratory bird rehabilitator and follow
the rehabilitator's instructions.
(3) Nests. You may remove nests, eggs, and nestlings from the
interior of a human-occupied building or structure. You are encouraged
to seek the assistance of a federally permitted migratory bird
rehabilitator or your regional Migratory Bird Permit Office prior to
removing eggs or nestlings. When possible, prevent the need for take of
occupied nests by waiting until nestlings fledge. You may transport
eggs or nestlings to a federally permitted migratory bird
rehabilitator, if the rehabilitator recommends that you do so.
Otherwise, you may humanely destroy eggs or euthanize nestlings
following the Avian Veterinary Medical Association Guidelines for the
Euthanasia of Animals or an equivalent process.
(4) Prevention. To the degree feasible, you must prevent birds from
reentering buildings or structures by taking such actions as patching
holes or installing bird exclusion devices. Exclusion devices must be
regularly monitored, maintained, and repaired to ensure they remain
effective and to prevent entrapment, injury, or death.
(5) Disposal. You may not lethally take migratory birds, except as
authorized for chicks and eggs in paragraph (b)(3) of this section. If
your actions to remove the trapped migratory bird are likely to result
in lethal take of adult birds, you must first obtain a Federal
migratory bird permit. If you otherwise comply with the requirements of
this section and a bird you are trying to remove dies, you must
immediately dispose of the remains by donation to an entity authorized
to possess the bird by permit or regulatory authorization, or by
destroying the remains in accordance with Federal, State, and local
laws and ordinances.
(c) Additional authorization is required for bald eagles, golden
eagles, and species on the Federal List of Endangered and Threatened
Wildlife (50 CFR 17.11(h)).
(d) You must also comply with any Federal, State, Tribal, or
Territorial requirements that apply to removing migratory birds from
buildings.
0
8. Add Sec. 21.16 to read as follows:
Sec. 21.16 Salvage authorization.
The regulations in this section authorize salvage activities and
provide an exception to permit requirements for these activities.
(a) Salvage of migratory birds. Any person may salvage migratory
bird specimens under the conditions set forth in this section.
Specimens include whole birds found dead, parts, and feathers,
including bald eagles and golden eagles. Inactive nests and
[[Page 35818]]
nonviable eggs, except for those of bald eagles or golden eagles, may
also be salvaged under the regulations in this section. This
authorization does not apply to live birds, viable eggs, or active
nests.
(1) All salvaged specimens must be disposed of within 7 calendar
days.
(2) You must tag each specimen intended for donation with the date,
location of salvage, and the name and contact information of the person
who salvaged the specimen. The tag must remain with the specimen.
(3) Nonviable eggs may not be salvaged during breeding season
unless you are sufficiently skilled and able to discern viable eggs
from nonviable eggs. Salvage of viable eggs is not authorized.
(4) If you encounter a migratory bird with a Federal band, you must
report the band to the U.S. Geological Survey Bird Banding Laboratory.
(b) Disposition of bald eagles and golden eagles. (1) If you
salvage a whole bald eagle or golden eagle (eagle), part of an eagle
(e.g., wing or tail), or feathers, you must immediately contact the
National Eagle Repository and follow the Repository's instructions on
transferring the eagle, parts, or feathers to the Repository.
(2) If you salvage an eagle specimen that are not accepted by or
the National Eagle Repository provides written authorization for
donation of eagle specimen type listed in paragraph (b)(1) of this
section, you may donate specimens to a public museum, public scientific
society, or public zoological park authorized to receive eagle
specimens for scientific or exhibition purposes under a valid permit
authorization (50 CFR 22.15) or permit (50 CFR 22.50).
(3) If not disposed of in accordance with the regulations in
paragraphs (b)(1) or (2) of this section, eagle specimens must be
disposed of at the direction of the Service Office of Law Enforcement.
Personal use is not authorized. Eagles may not be held in possession
for more than 7 calendar days and may not be sold, bartered, or offered
for purchase, sale, or barter.
(c) Disposition of all other migratory birds. (1) Except for bald
eagles or golden eagles, migratory bird specimens may be disposed of by
donation to any person or institution authorized to receive them under
a valid permit or regulatory authorization.
(2) If not donated, migratory bird specimens must be disposed of by
destroying specimens in accordance with Federal, State, and local laws
and ordinances. Personal use is not authorized. Birds, parts, nests,
and eggs may not be held in possession for more than 7 calendar days
and may not be purchased, sold, bartered, or offered for purchase,
sale, or barter.
(d) Records. You must maintain records of all donated birds,
including eagles sent to the National Eagle Repository for 5 years.
Records must include species, specimen type, date, location salvaged,
and recipient. At any reasonable time upon request by the Service, you
must allow the Service to inspect any birds held under this
authorization and to review any records kept.
(e) Other requirements. Additional Federal, State, Tribal, or
Territorial permits may be required. This authorization does not grant
land access. You are responsible for obtaining permission from
landowners when necessary and for complying with other applicable laws.
(f) Reporting to law enforcement. You must notify the Service
Office of Law Enforcement (see 50 CFR 10.22 for contact information) if
you suspect birds were illegally killed or if five or more birds are
found dead and there is a risk of mortality due to disease.
0
9. Add Sec. 21.18 to read as follows:
Sec. 21.18 Educational use of specimens authorization.
(a) Scope. For conservation education purposes, public entities
(``public'' as defined in 50 CFR 10.12) are authorized to possess
lawfully acquired migratory bird specimens, including whole bird
remains, parts, feathers, nests, and eggs, as described in the
regulations in this section. This authorization does not apply to live
birds, viable eggs, active nests, or bald eagles or golden eagles (see
50 CFR 22.15).
(b) Acquisition. Migratory bird specimens must be acquired from
persons authorized by permit or regulation to possess and donate such
items. You are responsible for ensuring specimens were legally
acquired.
(c) Disposition. You may dispose of migratory bird specimens by
donation to any person or institution authorized to receive them under
a valid permit or regulatory authorization. Otherwise, you must dispose
of migratory bird specimens by destroying them in accordance with
Federal, State, or local laws and ordinances.
(d) Possession. Each migratory bird specimen must remain tagged
with the species, date, location, name of the donor, and donor's
authorization for acquisition. Specimen tags may be temporarily removed
during educational programs. Migratory bird specimens may be
taxidermied by a federally permitted taxidermist (Sec. 21.63) and
returned to you. As part of their official duties, employees and
volunteers of a public entity may prepare specimens for your
organization without a Federal taxidermy permit.
(e) Educational programs. Migratory bird specimens must be used for
public educational programs or held for public archival purposes.
Programs must include information about migratory bird ecology,
biology, or conservation. Specimens held for archival purposes must be
properly archived and readily accessible to the public for research
purposes. Specimens may be used for observational research without
additional authorization; however, removal of samples requires
additional authorization (Sec. 21.73).
(f) Prohibitions. Specimens may not be purchased, sold, or
bartered. You must not display any migratory bird specimens in a manner
that implies personal use, such as inclusion in millinery, ornamental,
or similar objects.
(g) Records. You must maintain accurate records of operations on a
calendar-year basis and retain these records for 5 years. Records must
reflect the programs conducted, each specimen in possession, and, if
applicable, specimen disposition. At any reasonable time upon request
by the Service, you must allow the Service to inspect any migratory
bird specimens held under this regulatory authorization and review any
records kept.
(h) Other laws. You must comply with any Federal, State, Tribal, or
Territorial requirements that apply to possession of migratory bird
specimens for educational use.
0
10. Add Sec. 21.20 to read as follows:
Sec. 21.20 Licensed veterinarian authorization.
(a) Any person who finds a sick, injured, or orphaned migratory
bird, including bald eagles and golden eagles, may, without a permit,
take possession of the bird for immediate transport to a licensed
veterinarian or federally permitted migratory bird rehabilitator.
(b) Licensed veterinarians are authorized to take the following
actions without a permit:
(1) For the purposes of providing veterinary care, take from the
wild or receive from any person sick, injured, or orphaned migratory
birds, including bald eagles and golden eagles.
(2) Perform diagnostics as well as surgical and nonsurgical
procedures necessary for triage, including euthanizing migratory birds
(See Sec. 21.76(e)(4)(iii)-(iv)). Amputations and other procedures
that could render a bird non-releasable may not be conducted under this
authorization.
[[Page 35819]]
(3) Release migratory birds that have been in care less than 24
hours to suitable habitat in the wild.
(4) Transfer birds to a federally permitted migratory bird
rehabilitator or licensed veterinarian.
(5) Dispose of dead migratory birds in accordance with Sec.
21.76(e)(4)(vi) and dispose of dead bald eagles and golden eagles in
accordance with Sec. 21.76(e)(4)(vi)(C).
(c) Licensed veterinarians are not authorized to release to the
wild migratory birds held in care longer than 24 hours. Migratory birds
may not be determined non-releasable under this authorization. These
activities require a rehabilitation permit (Sec. 21.76).
(d) Within 48 hours after hospitalization is no longer required,
live migratory birds must be transferred to a federally permitted
migratory bird rehabilitator. If unable to transfer a bird within that
time, you must contact your regional migratory bird permit office for
assistance in locating a permitted migratory bird rehabilitator,
authorization to continue care, or a recommendation to euthanize the
bird.
(e) Migratory birds in possession under this authorization must be
maintained in humane and healthful conditions as defined in Sec. 21.6.
(f) Licensed veterinarians must notify the appropriate Ecological
Services Office within 24 hours of receiving a migratory bird that is
also on the List of Endangered and Threatened Wildlife (50 CFR 17.11).
See 50 CFR 2.2 for a list of Service regional offices.
(g) Licensed veterinarians must keep records for 5 years of all
migratory birds held and treated under this authorization, including
those euthanized. Records must include the species of bird, the type of
injury, the date of acquisition, the date of death, cause of death, and
disposition (e.g., live bird transferred, remains destroyed, or remains
donated). Upon request of inspection, individuals must present
specimens and records at any reasonable time.
0
11. Add Sec. 21.32 to read as follows:
Sec. 21.32 Mortality event authorization.
(a) Natural resource and public health employees performing
official duties are authorized without a permit to collect, possess,
transport, and dispose of migratory birds found sick, injured, or dead
as part of a mortality event. A mortality event is an unforeseen event
that kills an unexpectedly high number of birds in a particular
location over a short period of time with the birds all exhibiting
similar pathological behavior or clinical signs. Birds or their parts
may be analyzed for cause of death.
(b) Natural resource and public health employees include employees
of:
(1) Government natural resource agencies;
(2) Government public health agencies;
(3) Government agricultural agencies; and
(4) Laboratories working on behalf of such agencies.
(c) Sick or injured birds may be humanely euthanized or transported
to a federally permitted rehabilitator or licensed veterinarian for
care or euthanasia. If euthanized, remains may be analyzed for cause of
death.
(d) Take and possession of uninjured or asymptomatic birds,
including for disease monitoring, is not covered under this
authorization and requires a scientific collection permit (Sec.
21.73).
(e) Notify the Service Office of Law Enforcement (see 50 CFR 10.22
for contact information) if illegal activity is suspected.
0
12. Add Sec. 21.34 to read as follows:
Sec. 21.34 Natural resource agency employees authorization.
(a) Excepted activities. While performing their official duties,
employees of Federal, State, Territorial, and federally recognized
Tribal natural resource agencies may conduct the following activities
without a permit:
(1) Salvage. Natural resource agency employees may salvage
migratory bird remains found dead in accordance with the salvage
authorization (Sec. 21.16).
(2) Educational use. Natural resource agency employees may possess
migratory bird specimens for conservation education programs in
accordance with the authorizations for use of educational specimens
(Sec. 21.18) and the exhibition of eagle specimens (50 CFR 22.15). A
permit is required to possess live birds, viable eggs, or active nests
for educational use.
(3) Transport. Natural resource agency employees may transport
sick, injured, or orphaned birds in accordance with Sec. 21.76(a). If
transport is not feasible within 24 hours, follow the instructions of a
federally permitted migratory bird rehabilitator to provide supportive
care, retain in an appropriate enclosure for up to 72 hours, or
euthanize the birds.
(4) Relocate. Natural resource agency employees may trap and
relocate migratory birds, nests, eggs, and chicks in accordance with
Sec. 21.14. Employees are authorized to conduct these activities to
remove birds from structures or whenever birds or humans are at risk if
birds are not relocated. Additional authorization is required for bald
eagles, golden eagles, or migratory birds on the List of Endangered and
Threatened Wildlife (50 CFR 17.11).
(b) Volunteers and contractors. Individuals under the direct
supervision of an agency employee (e.g., volunteers or agents under
contract to the agency) may, within the scope of their official duties,
conduct the activities authorized by this authorization. An authorized
individual must have a designation letter from the agency describing
the activities that may be conducted by the individual and any date and
location restrictions that apply.
(c) Official capacity. Employees and other authorized individuals
must act within their official duties, training, and experience when
conducting authorized activities, especially when handling live birds.
Live birds must always be cared for under humane and healthful
conditions as defined in Sec. 21.6.
(d) Records. Agencies must keep records for 5 years of activities
conducted under this authorization. The records must include the
species and number of birds, the type of activity, date, and
disposition.
0
13. Add Sec. 21.40 to read as follows:
Sec. 21.40 Law enforcement authorization.
(a) Law enforcement personnel authorized to enforce the provisions
of the Migratory Bird Treaty Act (16 U.S.C. 706 and 708) or Bald and
Golden Eagle Protection Act (16 U.S.C. 668b) may, in performing
official duties and without a permit, take, acquire, possess,
transport, and dispose of migratory birds (including bald eagles and
golden eagles) whether alive or dead, including their parts, nests, or
eggs.
(b) Law enforcement personnel may designate non-law-enforcement
personnel to acquire, possess, transport, or dispose of migratory birds
on the behalf of law enforcement under this authorization. Designations
must include the name and contact information of the individual
designated, dates valid, activities authorized, and name and contact
information of the authorizing agent.
Subpart C--Specific Permit Provisions
0
14. Amend Sec. 21.76 by revising paragraphs (a), (e)(1), and
(e)(4)(vi)(A) to read as follows:
Sec. 21.76 Rehabilitation permits.
(a) What is the permit requirement? Except as provided in Sec.
21.20, 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 for
[[Page 35820]]
immediate transport to a permitted rehabilitator or licensed
veterinarian.
* * * * *
(e) * * *
(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. The Regional Migratory Bird Permit Office will
authorize variations where reasonable and necessary to accommodate a
particular rehabilitator's circumstances, unless that office determines
that the variation is not humane for the migratory birds. However,
except as provided by paragraph (f)(2)(i) of this section, all
facilities must comply with the following criteria:
* * * * *
(4) * * *
(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 the regulations in subpart B of this
part.
* * * * *
0
15. Amend Sec. 21.82 by revising paragraphs (f)(12)(ii) and (v) and
(f)(13)(ii) to read as follows:
Sec. 21.82 Falconry standards and falconry permitting.
* * * * *
(f) * * *
(12) * * *
(ii) You may donate feathers from a falconry bird, except golden
eagle feathers, to any person or institution with a valid permit to
have them, or to anyone exempt from the permit requirement under the
regulations in subpart B of this part.
* * * * *
(v) If your permit expires or is revoked, you must donate the
feathers of any species of falconry raptor except a golden eagle to any
person or any institution exempt from the permit requirement under the
regulations in subpart B of this part or authorized by permit to
acquire and possess the feathers. If you do not donate the feathers,
you must burn, bury, or otherwise destroy them.
(13) * * *
(ii) You may donate the body or feathers of any other species of
falconry raptor to any person or institution exempt from the permit
requirement under the regulations in subpart B of this part or
authorized by permit to acquire and possess such parts or feathers.
* * * * *
0
16. Amend Sec. 21.85 by revising the section heading and paragraph
(k)(1) to read as follows:
Sec. 21.85 Raptor propagation permitting.
* * * * *
(k) * * *
(1) You may donate the body or feathers of any species you possess
under your propagation permit to any person or institution exempt from
the permit requirement under the regulations in subpart B of this part
or authorized by permit to acquire and possess such parts or feathers.
* * * * *
PART 22--EAGLE PERMITS
0
17. The authority citation for part 22 continues to read as follows:
Authority: 16 U.S.C. 668-668d; 703-712; 1531-1544.
Subpart A--Introduction and General Requirements
0
18. Add Sec. 22.5 to read as follows:
Sec. 22.5 Disqualifying factors.
A person is disqualified from exercising the authorization granted
by permit, including regulatory authorizations, under part 22, unless
waived by the Director in response to a written petition, if the
person:
(a) Has been convicted or plead guilty or nolo contendere for a
felony violation of the Lacey Act (18 U.S.C. 42, as amended), the
Migratory Bird Treaty Act (16 U.S.C. 703-712), or the Bald and Golden
Eagle Protection Act (16 U.S.C. 668-668d).
(b) Has had the same or similar authorization revoked (Sec. 13.28)
within the last 5 years.
(c) Has failed to pay required fees, penalties, or other money owed
to the United States. Disqualification is effective as long as the
deficiency exists, except, in the case of repeated failure to pay, the
Service notifiesy the person in writing of permanent disqualification.
(d) Has failed to submit timely, accurate, or valid reports as
required, as long as the deficiency exists. Disqualification is
effective as long as the deficiency exists, except, in the case of
repeated failure to meet reporting requirements, the Service notifies
the person in writing of permanent disqualification.
0
19. Revise Sec. 22.6 by adding a definition for ``Humane and healthful
conditions'' in alphabetic order to read as follows:
Sec. 22.6 Definitions.
* * * * *
Humane and healthful conditions means using methods supported by
the best available science that minimize fear, pain, stress, and
suffering of an eagle held in possession. This definition applies
during capture, possession (temporary or long term), or transport.
Humane and healthful conditions pertain to handling (e.g., during
capture, care, release, restraint, and training), housing (whether
temporary, permanent, or during transport), shelter, feeding and
watering, sanitation, ventilation, protection from predators and
vermin, and, as applicable, enrichment, veterinary care, and
euthanasia.
* * * * *
0
20. Add Sec. 22.15 under a new subpart B to read as follows:
Subpart B--Exceptions to Permit Requirements
Sec. 22.15 Exhibition use of eagle specimens authorization.
For conservation education purposes, public museums, public
scientific societies, and public zoological parks are authorized to
possess lawfully acquired eagle specimens, including whole bird
remains, parts, feathers, nests, and eggs as described in the
regulations in this section. This authorization does not apply to live
eagles or viable eggs.
(a) Acquisition. Bald eagle and golden eagle specimens must be
acquired from persons authorized by permit or regulation to possess and
donate such items. You are responsible for ensuring specimens were
legally acquired. Eagle specimens salvaged from the wild after
[EFFECTIVE DATE OF FINAL RULE] must have written authorization from the
National Eagle Repository for exhibition use.
(b) Disposition. You may dispose of eagle specimens by donation to
any person or institution authorized to receive them under a valid
permit or regulatory authorization. Otherwise, you must dispose of
eagle specimens by destroying them in accordance with Federal, State,
or local laws and ordinances.
(c) Possession. Each eagle specimen must remain tagged with the
species, date, location, name of the donor, and the donor's
authorization for acquisition. Specimen tags may be temporarily removed
during educational programs. Eagle specimens may be taxidermied by a
federally permitted taxidermist (50 CFR 21.63) and returned to you. As
part of their official duties, employees and volunteers of a public
entity may prepare specimens for your organization without a Federal
taxidermy permit.
[[Page 35821]]
(d) Educational programs. Eagle specimens must be used for public
educational programs or held for public archival purposes. Programs
must include information about eagle ecology, biology, or conservation.
Specimens held for archival purposes must be properly archived and
readily accessible to the public for research purposes. Specimens may
be used for observational research without additional authorization;
however, removal of samples requires additional authorization (Sec.
22.50).
(e) Prohibitions. Specimens may not be purchased, sold, bartered,
or offered for sale or barter. You must not display any eagle specimens
in a manner that implies personal use.
(f) Records. You must maintain accurate records of operations on a
calendar-year basis and retain these records for 5 years. Records must
reflect the programs conducted, each specimen in possession, and, if
applicable, specimen disposition. The Service may inspect any eagle
specimens held under this regulatory authorization and review any
records kept at any reasonable time. Individuals must present specimens
and records for inspection upon request.
(g) Other laws. You must also comply with pertinent Federal, State,
Tribal, or Territorial requirements.
Subpart C--Specific Eagle Permit Provisions
0
21. Amend Sec. 22.50 by revising the section heading and the
introductory text to read as follows:
Sec. 22.50 Eagle scientific and exhibition permits.
We may, under the provisions of this section, issue a permit
authorizing the taking, possession, transportation within the United
States, or transportation into or out of the United States of lawfully
possessed bald eagles or golden eagles, or their parts, nests, or eggs
for the scientific or exhibition purposes of public museums, public
scientific societies, or public zoological parks. A permit is not
required if your activities fall within the authorization for
exhibition use of eagle specimens (Sec. 22.15). We will not issue a
permit under the regulations in this section that authorizes the
transportation into or out of the United States of any live bald or
golden eagles, or any live eggs of these birds.
* * * * *
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-11652 Filed 5-31-23; 8:45 am]
BILLING CODE 4333-15-P