Migratory Bird Permits

TABLE OF CONTENTS

OVERVIEW

2.1 What is the purpose of this chapter? This chapter describes migratory bird permitting, including the types of permits and regulatory authorizations administered under the Migratory Bird Treaty Act (MBTA) and its implementing regulations at 50 CFR Part 21.

2.2 What is the scope of this chapter? This chapter covers authorizations under 50 CFR Part 21. Service Manual chapter 724 FW 3 covers permitting under the Bald and Golden Eagle Protection Act and regulations in 50 CFR Part 22. 

2.3 What is the MBTA and what does it cover? See 720 FW 1 for detailed information about the MBTA and what it covers. The Secretary of the Department of the Interior delegates to the U.S. Fish and Wildlife Service (Service) the responsibility for administering 50 CFR Part 21, Migratory Bird Permits.

REGULATED SPECIES AND ACTIVITIES

2.4 What activities do the migratory bird regulations cover? In general, under the MBTA and 50 CFR Part 21, entities must be authorized for the taking, possession, transportation, sale, purchase, barter, importation, exportation, and banding or marking of any migratory bird listed in 50 CFR 10.13. This includes a broad array of activities such as research, education, rehabilitation, propagation, falconry-related activities, Native American religious use, and depredation. 

2.5 What migratory bird species are protected? The list of protected birds is maintained in regulation at 50 CFR 10.13 and includes over 1,000 species. Birds are protected based on whether their species, family, or taxonomic group is covered under at least one of the four bilateral migratory bird treaties. Birds are protected whether or not ecologically migratory, no matter their origin, whether or not raised in captivity, and inclusive of mutations and hybrids (50 CFR 10.12). Additional definitions to note are:

A. Hybrid birds (50 CFR 21.6) are any bird that results from a cross of genetic material between two separate taxa when one or both are listed at 50 CFR 10.13, and any progeny of those birds. Hybrids of one or more migratory bird species are protected under the MBTA (50 CFR 10.12, see “migratory bird”).

B. Migratory game birds (50 CFR 20.11(a)).

(1) Migratory game birds that are protected include:

     (a) Anatidae (ducks, geese [including brant], and swans),

     (b) Columbidae (doves and pigeons),

     (c) Gruidae (cranes),

     (d) Rallidae (rails, coots, and gallinules), and

     (e) Scolopacidae (woodcock and snipe). 

(2) In administering permits, “waterfowl” refers to Anatidae and “game bird” refers to the other four families.

C. Domestic birds (50 CFR 14.4) are excluded from the protections and prohibitions of the MBTA, including barnyard mallards.

(1) Domesticated animals are exempt from the requirements of subchapter B (except for species obtained from wild populations) (50 CFR 14.4). The definition of domestic birds includes domesticated varieties of ducks and geese (50 CFR 14.4).

(2) The definition also includes barnyard mallards, of which there are many domesticated varieties. Varieties that are readily distinguishable from wild mallard ducks are considered barnyard mallards and are exempt from all permitting and marking requirements under 50 CFR Part 21. The barnyard mallard exemption includes hybrids, as defined in 50 CFR 21.6, provided the individual is visually distinguishable from wild mallards. Barnyard mallards may be bought, sold, traded, or bartered, subject to other applicable Federal, State, and local regulations, including regulations for poultry. 

(3) In addition, control of these and other domesticated or “barnyard” varieties of waterfowl has long been allowed without Part 21 authorization under 50 CFR 14.4, as it is not “obtaining” from wild populations. 

2.6 What is the definition of take for migratory birds? The MBTA statute does not define take. Regulations (50 CFR 10.12) define take to mean: “To pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” This definition applies to the MBTA and regulations in 50 CFR Part 21.

2.7 What parts of a migratory bird are protected?

A. The possession of all parts, nests, or eggs of a migratory bird species are protected. This includes possession of live birds, whole remains, partial remains, feathers, specimens (e.g., study skins, blood, DNA, toenail clippings), eggs (viable and nonviable), and nests (whether or not in use). Possession also applies to any product that consists of or is composed of these parts, including art, apparel, and other objects that contain or are composed of bird parts, bones, feathers, etc. 

B. Owl pellets, albatross boluses, bird feces, and similar items that are naturally regurgitated or excreted by birds are not protected provided items are collected without disturbing the bird or bird nest. Even though there is a possibility that the item may contain pieces of migratory bird species, they are primarily composed of rodents and fish. A permit is not required to possess these items; however, a permit is required if an individual is in possession of a bird when collecting these items.

PERMITS AND OTHER AUTHORIZATIONS

2.8 What types of migratory bird permits are available? The Service most commonly provides MBTA authorization through permits. Most permit types have their own regulation in 50 CFR Part 21. There is also a Special Purpose Miscellaneous permit type that serves to authorize any remaining activities that are too few to warrant a specific permit type or individually unique circumstance. Permits may be combined in accordance with 50 CFR 13.11(d)(2). See the Migratory Bird Permitting Handbook for a complete list of permit types.

2.9 What are the regulatory authorizations for migratory birds? In addition to permits, the Service can provide MBTA authorization through a regulation without the need for a permit. These are called “regulatory authorizations.” Part 21 includes regulatory authorizations that are general exceptions (listed in 50 CFR 21 Subpart B), exceptions identified within permit regulations (such as import/export exceptions and the rehabilitation “good Samaritan” clause), and orders (50 CFR 21 Subpart D). See the Migratory Bird Permitting Handbook for a complete list of permit exceptions.

2.10 What is the difference between a depredation order, control order, and conservation order? Often just referred to as “orders,” there are a series of regulatory authorizations provided for birds that are depredating or otherwise injurious. Consistent with A Conceptual Framework for Evaluating and Responding to Conflicts with Migratory Bird Species, a species conflict core team should be formed to review alternatives and determine if an order is the best approach before developing a new order. There are three different types of orders—depredation, control, and conservation.

A. Depredation orders allow the take of certain species of migratory birds for specific depredation purposes without need for a depredation permit. The Service implements depredation orders when the number of permits causes administration to be burdensome on the Service and the general public, the bird species taken is sufficiently abundant, and no other environmental effects exist to make systematic review appropriate.

B. Control orders are used for depredation and population control of species protected by the MBTA when they occur outside of their native range all or some of the year, particularly where they are introduced by humans and are causing damage to natural resources such as threatened or endangered species or critical habitats.

C. Conservation orders are used to control bird populations when traditional management programs are unsuccessful in preventing overabundance of the population.

2.11 What if a migratory bird species is also protected by another Federal law or international treaty (e.g., the Endangered Species Act [ESA] or the Convention on International Trade in Endangered Species [CITES])? Migratory bird species may also be protected by other laws or ratified international treaties, most commonly the Bald and Golden Eagle Protection Act (Eagle Protection Act), the ESA, or CITES. Activities involving migratory birds must comply with the MBTA and associated regulations, even if a species is listed under the Eagle Protection Act, ESA, or CITES. In general, the Eagle Protection Act, ESA, and CITES laws and regulations are used for authorizing take with concurrence provided under the MBTA by the Migratory Bird Permit office. However, there are some circumstances where it is most appropriate to use the MBTA law and regulations for authorizing activities with concurrence provided under the Eagle Protection Act, ESA, or CITES. This is most common when authorizing the possession of bird specimens or live birds.

2.12 What other regulations may apply?

A. Airborne Hunting Act. The Airborne Hunting Act (16 U.S.C. 742j-1) and its regulations (50 CFR 19) prohibit the shooting or harassing of wildlife from any aircraft. The increasing use of Unmanned Aircraft Systems (UAS; also known as drones) for monitoring, scientific, and recreational purposes are governed by this regulation. UAS are considered aircraft, and the Act and regulation apply to intentional or unintentional harassment of migratory birds with them. Exceptions exist for certain State and Federal agency activities and permit holders (50 CFR 19.12).

B. Hunting regulations. The hunting regulations are in 50 CFR 20. The Migratory Bird Permit offices are not responsible for administration of the hunting regulations; however, certain activities and definitions are relevant, including:

(1) Commercial use of feathers (50 CFR 20.91),

(2) Personal use of feathers (50 CFR 20.92),

(3) List of approved non-toxic shot types (50 CFR 20.21(j)(1)),

(4) Tagging requirements (50 CFR 20.36), and

(5) Export (50 CFR 20 Subpart F) and import (50 CFR 20 Subpart G) of hunted game birds.

C. Import and export of wildlife. The uniform rules and procedures for the importation, exportation, and transportation of wildlife can be found in 50 CFR Part 14.