[Federal Register: October 27, 2003 (Volume 68, Number 207)]
[Rules and Regulations]               
[Page 61123-61140]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Parts 17, 21 and 22

RIN 1018-AH87

Migratory Bird Permits; Regulations Governing Rehabilitation 
Activities and Permit Exceptions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: This regulation creates a permit category specifically to 
authorize migratory bird rehabilitation. Migratory bird rehabilitation 
is the practice of caring for sick, injured, or orphaned migratory 
birds with the goal of releasing them back to the wild. In addition to 
establishing this new permit category, this regulation creates two 
exceptions to migratory bird permit requirements: For public officials 
responsible for tracking infectious diseases, and for veterinarians who 
receive injured or sick migratory birds.

EFFECTIVE DATE: This rule is effective November 26, 2003.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North 
Fairfax Drive, Suite 400, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service; 703/358-



    The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) 
prohibits possession of any bird protected by treaties between the U.S. 
and Canada, Mexico, Japan, and Russia. Birds covered by the Act are 
referred to as ``migratory birds.'' Prior to this rulemaking, persons 
engaged in providing treatment to sick, injured, or orphaned migratory 
birds had to obtain a special purpose permit from the U.S. Fish and 
Wildlife Service under 50 CFR 21.27. The special purpose permit 
category is used to authorize activities not specifically covered by 
other existing types of permits.
    Currently, approximately 2,500 special purpose permits for 
migratory bird rehabilitation purposes are active nationwide, 
representing almost half the approximately 5,500 currently active 
special purpose permits. The permits were tailored to address migratory 
bird rehabilitation activities by means of Standard Conditions attached 
to every permit. Those Standard Conditions are the basis of the 
regulatory framework established by this rulemaking, which creates a 
new permit category specifically for rehabilitation of migratory birds.
    The rule addresses rehabilitation of threatened and endangered 
migratory bird species and amends 50 CFR 17 (Endangered and Threatened 
Wildlife) to exempt persons who obtain a rehabilitation permit from 
having to obtain an additional permit under part 17 to care for 
threatened and endangered migratory bird species. Accordingly, the rule 
contains numerous provisions addressing rehabilitation of threatened 
and endangered migratory bird species, including additional 
requirements to notify and coordinate with the Service.

New Permit Exceptions

    This rule also adds a new permit exception to 50 CFR 21.12 to allow 
Federal, State, and local wildlife officials, land managers, and public 
health officials responsible for monitoring public health threats to 
collect, possess, transport, and dispose of sick or dead migratory 
birds or their parts for analysis to confirm the presence or absence of 
infectious disease such as West Nile virus and botulism. The exception 
does not apply to healthy birds, or where circumstances indicate that 
the death, injury, or disability of a bird was caused by factors other 
than infectious disease. This permit exception will facilitate timely 
response to public health concerns and outbreaks of avian infectious 
    The rule also provides an exemption to the permit requirements of 
50 CFR part 17 and 50 CFR part 21 for veterinarians to temporarily hold 
and treat listed migratory bird species.
    Proposed rule and comments received. On December 6, 2001 (66 FR 
63349), we proposed a rule establishing a permit category specifically 
governing the rehabilitation of migratory birds to replace our system 
of issuing permits for migratory bird rehabilitation under the 
miscellaneous Special Purpose permit category authorized by 50 CFR 
21.27. We received 199 comments on the proposed rule. Of those, 60 were 

[[Page 61124]]

comments, most of which were submitted by individuals who were not 
rehabilitators. Of the remaining 139 comments, 123 were from 
rehabilitators; 10 were from State agencies; and 6 were from 

Section-by-Section Analysis

    The following preamble text discusses the substantive comments 
received and provides our responses to those comments. Additionally, it 
provides an explanation of significant changes from the proposed rule. 
We do not address the comments that were favorable and contained no 
recommendations for revisions. Comments are organized by topic. The 
citations in the headings correspond to provisions within the Final 
    Revisions to 50 CFR part 17: Comment: The rulemaking contains 
provisions that revise Sec.  17.21 to exempt permitted migratory bird 
rehabilitators from having to obtain an additional permit under 50 CFR 
17, which governs federally listed threatened and endangered species. 
Yet the word ``endangered'' is not accompanied by the word 
``threatened.'' Do those provisions apply to species that are 
threatened, as well as to those that are endangered?
    Service response: The rule addresses both threatened and endangered 
species. Within existing regulations, Sec.  17.21 addresses endangered 
species, specifically, while Sec.  17.31 addresses threatened species. 
However, by reference, most of Sec.  17.21 does apply to threatened, as 
well as endangered, species because the regulations at Sec.  17.31 
state: ``Except as provided in subpart A of this part, or in a permit 
issued under this subpart, all of the provisions of Sec.  17.21 shall 
apply to threatened wildlife, except Sec.  17.21(c)(5)'' [italics added 
here for emphasis]. Thus, in order to exempt rehabilitators from the 
requirement to obtain a separate permit under part 17 to rehabilitate 
both endangered and threatened species, this rule needs only to amend 
the sections of part 17 that address endangered species (Sec.  17.21), 
and not also Sec.  17.31, which addresses threatened species.
    Scope of Regulations. (Sec.  21.2): The proposed rule contained 
revisions to Sec.  21.2 in order to allow the new permit regulation to 
cover rehabilitation of eagles as well as other migratory birds. This 
was necessary because, under current regulations, permits authorizing 
activities involving eagles are covered under separate regulations at 
part 22, rather than part 21, which covers permits for all other 
migratory birds. Eagles have their own permit regulations because they 
are protected not only by the MBTA, but also by the Bald and Golden 
Eagle Protection Act (BGEPA), which contains different, and in some 
respects more protective, language than the MBTA. This final rule 
revises the proposed Sec.  21.2 language in order to clarify that the 
migratory bird permit exemptions at Sec.  21.12(a), (c), and (d) also 
apply to eagles.
    This final rule also introduces a minor revision to part 22 (eagle 
permits). The revision to Sec.  22.11 accomplishes the same purpose as 
the changes to Sec.  21.2, and was necessary to bring part 21 
(migratory bird permits) and part 22 into agreement. Prior to this 
rulemaking, Sec.  22.11 provided that certain actions prohibited by the 
BGEPA may be permitted only under part 22, part 13, and/or Sec.  21.22 
(banding or marking permits). Thus, the only permit regulations within 
part 21 that applied to eagles were regulations pertaining to banding 
and marking permits. The new Sec.  22.11 language extends the 
application of part 21 to eagles, by providing that actions prohibited 
under the BGEPA may be permitted by part 22, part 13, and/or part 21, 
as provided by Sec.  21.2.
    Permit exemption for public health officials. Sec.  21.12(c): The 
Service has revised this provision for the final rule by adding 
employees of land management agencies to the list of exempted personnel 
who may collect infected birds without a permit. We made this revision 
because of the increasing presence of West Nile virus nationwide, which 
has been accompanied by an increased need for land managers, such as 
the National Park Service, to monitor the spread of the virus in avian 
populations on public lands.
    Comment: The word ``toxins'' should be changed to ``causes'' to 
allow public health officials to pick up birds injured by natural 
    Service response: Replacing the word ``toxins'' with ``causes'' 
would create a different result from what we intended. This provision 
was not meant to allow public health officials to collect birds injured 
by natural causes or accidents. Rather it is intended to cover only 
situations where birds are suspected to have been stricken by 
infectious diseases (including those caused by natural toxins). The 
final rule continues to provide that public health officials acting 
without a permit would not be authorized to collect and possess birds 
that appear to have been injured as the result of anything but 
infectious diseases or natural toxins. (A different provision within 
the new permit regulation authorizes any person to pick up an injured 
bird in order to immediately take it to a permitted migratory bird 
    Comment: Persons exempt from migratory bird permit requirements by 
Sec.  21.12 should still have to adhere to some facility and husbandry 
    Service response: As part of a separate rulemaking, we intend to 
propose language that addresses Sec.  21.12 permit exemptions and 
establishes baseline facility and husbandry requirements for those 
entities exempted under Sec.  21.12.
    Comment: Public health officials will not adequately safeguard the 
birds, because they won't be able to recognize the differences between 
public health threats and other conditions that do not affect public 
health. Rehabilitators should accompany them. Birds may be 
unnecessarily killed. The regulations need to include provisions 
addressing the care of these birds after they are collected, as well as 
a requirement to notify a permitted rehabilitator, and recordkeeping 
    Service response: Rehabilitators are free to volunteer their 
services to accompany such public health officials. However, whether or 
not rehabilitators are present, these officials need to be able to pick 
up birds that may be evidence of a high risk to public health. 
Furthermore, the majority of these birds will already be dead or 
mortally ill. We do not agree that it would be in the best interest of 
the overall protection of migratory birds, or that it will enhance 
public perception of the field of migratory bird rehabilitation, to 
impose onerous recordkeeping requirements on persons acting to protect 
public health in situations where most birds are dead or doomed.
    Permit exemption for veterinarians Sec.  21.12(d): Comment: 
Veterinarians are not usually trained to treat birds. And wild birds 
may be given less priority since they are not associated with paying 
customers. Veterinarians should be required to get permits.
    Service response: The purpose of this exemption is to make legal a 
practice that is common today--that is, the situation where a person 
finds an injured bird, and not knowing what else to do, brings it to a 
veterinarian. Many veterinarians do not want to turn away an injured 
creature, particularly if it means that it may not survive long enough 
to be taken to a permitted migratory bird rehabilitator. Right now, if 
the veterinarian tries to stabilize the bird, he or she is violating 
the law. The Service believes that veterinarians should not be forced 
to make the choice between providing emergency care to a stricken bird 
and breaking the law. Furthermore, we believe that this provision will 
foster greater awareness

[[Page 61125]]

within the veterinary community of legal status and medical needs of 
migratory birds, and will build relationships and strengthen 
communication between veterinarians and migratory bird rehabilitators, 
resulting in an overall net benefit to migratory birds.
    Comment: The veterinary permit exemption is not needed because the 
new permit regulation's ``Good Samaritan clause'' at Sec.  21.31(a) 
should cover veterinarians already.
    Service response: The good Samaritan clause does not authorize 
persons to retain birds or to provide stabilizing medical treatment or 
euthanasia. Under the Good Samaritan clause, a person who finds and 
takes temporary possession of an injured bird is required to contact a 
permitted rehabilitator, and transfer the bird to them immediately.
    Comment: Veterinarians should be required to contact the Service 
for one of the following: a referral to a permitted migratory bird 
rehabilitator, permission to stabilize for transfer within 24 hours, or 
permission to euthanize.
    Service response: The rule states that veterinarians must transfer 
any bird they do not euthanize to a permitted migratory bird 
rehabilitator. Veterinarians may contact the Service if they need to 
find a local rehabilitator, but we do not see what purpose it would 
serve to require them to contact us for a referral, when in some cases, 
they will already have such information. Second, the rule only provides 
authority for necessary stabilization of the bird's condition, which we 
would certainly grant, should the vet call us, so we do not see what 
purpose it would serve to require the veterinarian to call us for 
permission. Finally, euthanasia is a means to stop the suffering of the 
bird. To require a veterinarian to call the Service could unduly 
prolong such suffering, so the rule does not require this either.
    Comment: Veterinarians should not have to call U.S. Fish and 
Wildlife Service's Ecological Services personnel when they receive an 
injured federally listed migratory bird species. Rather, they should 
have to call a permitted rehabilitator.
    Service response: The rule requires veterinarians to contact the 
Service for the same reason that it requires rehabilitators to contact 
the Service: specialized facilities exist to care for some listed 
species, and in those cases, it could be critical that the bird be 
transferred to the designated facility as soon as possible.
    Comment: Why is the veterinarian's requirement to contact the 
Service when they receive a listed species different than the 
requirement for rehabilitators? The rule requires veterinarians to 
contact the Ecological Services Office, whereas rehabilitators are 
required to contact their issuing Migratory Bird Permit Office?
    Service response: Veterinarians are not permit holders, and 
therefore have no special relationship with the Service. It is just as 
easy for them to keep the telephone number of the local Ecological 
Services Office handy (which is the decisionmaking body in this 
scenario) as it is for them to contact the Regional Migratory Bird 
Permit Office. In contrast, permitted rehabilitators established a 
relationship with the Service's Migratory Bird Permit Office (the 
issuing office) when they applied for and were issued a permit. 
Contacting the issuing office is easier for them because the telephone 
number is included with their permit. The issuing office can then 
contact the Ecological Services Office. In addition, we hope that this 
rule will foster a new relationship between veterinarians and the 
Service in relation to migratory birds. In the case of endangered 
species, it makes sense that that relationship be with Ecological 
Services, the Service's office that handles listed species.
    Comment: Veterinarians should not have to keep records, except for 
the birds they euthanize, since the rest are transferred to permittees 
who keep the records.
    Service response: We agree with this comment. The rule has been 
revised to require veterinarians to keep records of only those birds 
that they euthanize or which otherwise die in their care.
    Comment: The phrase ``necessary treatment'' is not well-defined. 
``As soon as practicable'' is too ambiguous. Veterinarians should have 
to apply for a permit if they wish to do more. Veterinarians should be 
required to contact rehabilitators before performing any extended 
    Service response: We have revised the final rule to clarify that, 
absent a permit, veterinarians may only stabilize or euthanize birds, 
and we have established a time limit of 24 hours in which veterinarians 
may keep birds after stabilization without contacting the permit office 
for permission to retain the bird.
    Comment: The rule should require veterinarians to keep birds 
separated from other animals and away from noise and disturbance.
    Service response: While we agree with the recommendation to 
separate birds from noise and other animals, many vets may not be able 
to provide such an ideal situation, yet may still be able to aid 
injured birds that otherwise might not be saved.
    Comment: Veterinarians should be required to record the name and 
contact information for the person who delivered the bird, so that 
fledglings can be reunited with their parents.
    Service response: Under the rule, veterinarians are not authorized 
to accept healthy fledglings. The rule exempts them from the permit 
requirement only in cases of sick or injured birds.
    Comment: Many veterinarians are not trustworthy; some will use 
birds to experiment on. How will they be monitored?
    Service response: We do not agree that many veterinarians are 
likely to experiment on migratory birds.
    Comment: Veterinarians should not be exempt from permitting 
requirements. They do far too much damage (stress issues, imprinting, 
medical supply issues, surgical issues, caging concerns, etc.).
    Service response: The rule requires veterinarians to transfer birds 
to rehabilitators within 24 hours after the bird is stabilized. Many of 
the concerns noted by the commenter will not arise under this scenario 
(surgical issues, imprinting). While there is some risk that 
veterinarians will not provide adequate care, we believe that the 
majority will, and that the ability of veterinarians to accept birds 
from the public and stabilize them will result in an overall benefit to 
migratory birds.
    ``Good Samaritan clause.'' Sec.  21.31(a). Comment: This provision 
should be revised to require people who pick up birds to transfer them 
to a permitted rehabilitator within 24 hours, not just ``immediately'' 
as the proposed rule says.
    Service response: We believe that the language of the proposed rule 
will better ensure that Good Samaritans do not delay in finding a 
permitted rehabilitator to accept the bird.
    General permit provisions Sec.  21.31(b). Comment: The rule should 
say that rehabilitators provide ``rehabilitative services,'' not 
``medical care.'' Only veterinarians may provide medical care, under 
State licensure.
    Service response: We have revised the rule to state that 
rehabilitators are authorized to provide ``rehabilitative care.''
    Comment: The 24-hour limit within which rehabilitators are required 
to transfer species for which they do not have authorization is too 
short. Sometimes a qualified rehabilitator is not easily accessible or 
readily available. Also, in some situations it is

[[Page 61126]]

better for the bird not to be moved so soon.
    Service response: We have revised the rule to state that the bird 
must be transferred within 48 hours. The rule also now provides that 
the permittee must contact the issuing office for authorization to 
retain the bird until it can be transferred, if a rehabilitator 
authorized to receive the bird is not available within 48 hours.
    Comment: Rehabilitators should be able to use their birds in 
educational programs.
    Service response: The purpose of the rehabilitation permit is to 
rehabilitate birds for release to the wild. Birds held under a 
rehabilitation permit can be used for education only if transferred to 
an educational permit--after being deemed nonreleasable by a 
veterinarian. Birds undergoing rehabilitative care that are exposed to 
humans in educational programs could become imprinted, compromising 
successful reestablishment in the wild. (Within the context of this 
rulemaking, the word imprinted means habituated to humans). Even if not 
imprinted, the stress from this type of exposure can inhibit the 
rehabilitation of the bird.
    Application process and fee Sec.  21.31(c). Comment: The rule does 
not say what form the applicant must use to apply for a rehabilitation 
    Service response: The rule has been revised to state that the 
applicant must use Service Form 3-200-10b. We removed the provisions 
within this section that specified what the application must include, 
since all application requirements are specified on the application 
form. Notice is published in the Federal Register every 3 years 
alerting the public of their opportunity to review and comment on 
Service permit application forms and other forms used to collect 
information from the public. The current Rehabilitation permit 
application form was open for public comment on September 6, 2000 (65 
FR 54060) and March 8, 2001 (66 FR 13947), and will be open for review 
and comment again in 2003 or 2004.
    Comment: The applicant must submit a letter from a permitted 
rehabilitator stating that the rehabilitator will provide assistance to 
the applicant, but the rule does not specify what kind of assistance is 
envisioned. Is it for mentoring purposes for new rehabilitators, or is 
it supposed to ensure that there is a ``back-up'' rehabilitator 
available in case of illness or absence? If the former, the requirement 
to have a relationship with another permitted rehabilitator seems to be 
geared towards novices. Persons renewing their permits should not need 
to show this.
    Service response: The purpose of this requirement is primarily for 
mentoring purposes for new applicants. A rehabilitator renewing a 
permit does not need to resubmit the same information he or she 
provided in the original permit application. Instead, he or she will 
use a Service permit renewal form, which only asks for any information 
that has changed since the applicant last applied.
    Comment: The requirement to have another permitted rehabilitator 
vouch for the applicant's experience is unnecessarily burdensome and 
implies distrust.
    Service response: The letter serves to show that the applicant has 
had experience rehabilitating birds. We do not believe that asking for 
a showing of experience implies distrust. It is merely a way to 
distinguish those applicants who have experience from those who do not. 
We also do not agree that this requirement is overly burdensome. The 
letter need not be lengthy. Furthermore, this requirement is not new; 
it has been a requirement on the Special Purpose--Rehabilitation permit 
application form for over a decade.
    Comment: As part of the application requirements, the cooperating 
veterinarian should not be required to state knowledge of the training 
and qualifications of the applicant.
    Service response: The application does not require such a 
statement; rather, it recommends that the veterinarian provide such 
knowledge if he or she has it. However, we will reconsider the need for 
this language when the application form is eligible for revision.
    Comment: People should not be required to have facilities in place 
before obtaining their permit. It is not reasonable to ask the 
applicant to build expensive facilities without knowing whether the 
permit will be granted.
    Service response: Having adequate facilities in place is a standard 
requirement for all permits authorizing possession of live wildlife. A 
permit can be issued to authorize rehabilitation of types of birds that 
do not require extensive or expensive facilities. Then, the permittee 
can upgrade his or her facilities at any time after the permit is 
issued to house more birds or different species. When such additions 
are made, the issuing office will expand the authorization on the 
permit, assuming the other criteria are also met (i.e., the applicant 
must also have the required experience to rehabilitate the new species 
he or she wishes to add to the permit).
    Comment: The permit application fee should be waived because of the 
vital public service rehabilitators perform. Rehabilitators voluntarily 
do the Service's work for them, and are funded through donations and 
community support. Some may not be able to afford to pay the fee.
    Service response: Although we believe the work of rehabilitators is 
very valuable, it is not a Service responsibility. None of the 
applicable laws or treaties make provision for care of individual 
birds, nor are funds appropriated by Congress for such a purpose. 
Rather, we are charged with and receive funding for implementing the 
various Migratory Bird Treaties and the Migratory Bird Treaty Act, 
which prohibit virtually any human contact with migratory birds unless 
authorized by regulations we issue, or by a permit from us. The permit 
program has significant costs, and we are directed by Congress and the 
Office of Management and Budget to charge a fee for providing permits, 
to recover at least some of these costs. Because of this, we do not 
receive appropriated funding sufficient to cover all costs of issuing 
permits, and must depend upon application fee revenues to make up the 
balance. In this particular case, the permit application fee is $5 or 
$10 dollars annually, which is not a significant financial burden upon 
any one applicant.
    What criteria will the Service consider before issuing a permit? 
Sec.  21.31(d). Comment: What criteria will the Service use to decide 
what species a person will be qualified to rehabilitate? The rule only 
says he or she must have ``adequate experience.'' What is ``adequate 
    Service response: We were reluctant to define exactly what type and 
amount of experience will be considered adequate, because of the 
different types of experiences that a person could have that might 
contribute to his or her ability to rehabilitate birds. An applicant 
who has cared for hundreds of uninjured orphaned nestlings, but who has 
never had any hands-on experience with injured birds, will not be 
qualified for a permit that authorizes rehabilitation of injured and 
sick birds. Depending on the extent of the applicant's experience 
working with baby birds, he or she may be qualified for a permit that 
is restricted to caring for orphaned nestlings. Similarly, hands-on 
experience working with injured and sick songbirds will not be 
sufficient to qualify an applicant for a permit to rehabilitate 
eagles--though it may be enough to enable the applicant to obtain a 
permit to work with passerines. However, because numerous

[[Page 61127]]

commenters were uncomfortable without some guidance as to what we will 
consider ``adequate experience,'' we revised this section to require at 
least 100 hours of hands-on experience with the types of species (not 
each and every specific species) that the applicant intends to 
rehabilitate, or ``comparable experience.'' Applicants' experience with 
migratory bird rehabilitation must span at least 1 year. This indicates 
an enduring interest in the field, as opposed to a temporary 
enthusiasm. Up to 20 hours of the time requirement may be fulfilled 
through attending migratory bird rehabilitation seminars and training 
    Comment: There should be a formal examination or review process to 
ensure that applicants have the necessary knowledge to treat migratory 
birds. Or the Service should set up a training and accreditation 
program to train prospective rehabilitators.
    Service response: While a written test or accreditation program may 
have value, our priority is that the applicant have hands-on experience 
in migratory bird rehabilitation. We believe that the application 
requirements and issuance criteria of this rule will adequately ensure 
that permittees are qualified.
    Comment: People should not be required to have experience before 
getting their own rehabilitation permit. It is too hard for them to get 
that experience without first having a permit. Having a permitted 
rehabilitator with little or no experience is better than having no 
rehabilitator at all, as would be the case in some areas. In order to 
gain the prior experience, the Service could institute a ``novice'' 
class of rehabilitators who would be more tightly regulated. They could 
gain their experience during the time spent in the novice class. Also, 
applicants may not want to admit to experience acquired without a 
    Service response: We do not believe it is advisable to allow people 
with little or no experience to handle migratory birds, which are wild 
animals and have very particular needs. We do not think it would be 
safe for the people or the birds. Providing safe and effective 
rehabilitative care for sick and injured migratory birds requires 
knowledge that is difficult to impossible to acquire without 
rehabilitation experience. To gain experience, a person dedicated to 
becoming a migratory bird rehabilitator can volunteer as a subpermittee 
for a federally permitted rehabilitator. Most rehabilitators can always 
use the assistance of capable individuals who are willing to learn.
    Comment: The regulations should provide for a licensed sponsor who 
could determine after a year if the subpermittee was ready to receive 
permittee status.
    Service response: We feel that this rule accomplishes the same 
objectives as a formal 1-year requirement for a sponsor, but with more 
flexibility. We expect most applicants to gain experience by working 
with permittees as subpermittees, and we ask the permit applicant to 
include a letter of reference from a permitted rehabilitator who has 
knowledge of the applicant's experience.
    Comment: The rule should require permittees to have at least 6 
months of experience in rehabilitation, a portion of which must occur 
in the spring.
    Service response: The rule has been revised to require that an 
applicant have experience spanning an entire year, in order to qualify 
for a permit. The purpose of this provision is primarily to ensure that 
the applicant's interest is more than fleeting, but it will also make 
it more likely that successful applicants will have rehabilitation 
experience during nesting season.
    Comment: People should not have to show prior experience with every 
species they wish to rehabilitate, since more than 800 species of birds 
are protected by the MBTA.
    Service response: The rule requires experience with the types of 
species you intend to rehabilitate, not with each and every species. 
For example, if you have adequate experience working with red-tailed 
hawks, goshawks, and barred owls, we may issue you a permit authorizing 
rehabilitation of raptors, even though you have never handled Cooper's 
Hawks, Harris's Hawks or American Kestrels. Of course, issuance of the 
permit would also be contingent on whether you have adequate facilities 
for rehabilitating raptors.
    Comment: The rule states that the Service will consider how much 
experience a person has rehabilitating species that are federally 
listed as threatened or endangered. This language should be removed 
because most people will have no experience with listed species, since 
these species are rare.
    Service response: We agree with this comment. Although some listed 
species may be locally abundant where they do occur, most are rarely 
encountered. Furthermore, rehabilitative treatment for most listed 
species will not differ categorically from treatment for unlisted 
birds. The language of the rule has been revised to reflect that 
permittees will be authorized to accept listed species with the 
condition that they immediately contact the Service to ascertain 
whether the Service will require the permittee to transfer the bird to 
a designated special facility.
    Comment: The requirement to have a working relationship with a 
veterinarian should not apply to rehabilitators who are veterinarians 
or ``other qualified biological specialists'' such as ornithologists or 
raptor biologists.
    Service response: We agree that an applicant need not have an 
agreement with a licensed veterinarian if the applicant is a licensed 
veterinarian. The rule has been revised to reflect this. However, we do 
not agree that an advanced degree in biology or ornithology includes 
the type of medical education that can substitute for veterinary 
    Comment: Some rehabilitators do not have access to a veterinarian. 
They should be able to send birds to rehabilitators who have such a 
    Service response: A veterinarian must be available to treat birds 
that need medical care. To involve another rehabilitator in the 
transfer to the veterinarian is an unnecessary burden on the second 
rehabilitator and is not in the best interest of the bird, which may 
need more immediate medical attention. We believe, and the rule 
reflects, that the originating rehabilitator should establish his or 
her own agreement with the veterinarian without going through another 
rehabilitator, particularly if the veterinarian will wind up treating 
the bird anyway.
    Comment: The rule should state that the veterinarians will provide 
``medical care,'' not ``veterinary assistance.'' Also, the rule does 
not define ``qualified'' veterinarian. It should be changed to 
    Service response: We agree with these comments and have revised the 
rule accordingly.
    Comment: The rule should contain provisions addressing what happens 
if the relationship with the veterinarian is terminated. Commenters 
make no suggestion of what kind of provisions would be appropriate. The 
rule should state that the rehabilitator must maintain a working 
relationship with a veterinarian throughout the tenure of the permit.
    Service response: We agree with this comment and have revised the 
rule to add a condition within Sec.  21.31(e) that the permittee must 
maintain a working relationship with a licensed veterinarian.
    Comment: Veterinarians could encounter liability issues if they 
commit on paper to providing assistance.
    Service response: No veterinarian is required to enter into such an 
agreement. None need participate in

[[Page 61128]]

migratory bird rehabilitation if it makes him or her uncomfortable. 
Also, the veterinary relationship has been a requirement of the 
rehabilitation permit for many years, and we have not heard any 
concerns from veterinarians regarding this provision.
    Comment: The rule should state that an applicant must have ``State 
authorization'' rather than a State ``permit or license'' if required 
by the State. Some States require authorization, but it is not in the 
form of either a permit or a license.
    Service response: The rule has been revised to include ``other 
    Comment: The rule does not say what happens when the rehabilitator 
loses his or her State permit.
    Service response: Section 21.31(g) has been revised to further 
clarify that the Federal permit is not valid unless the permittee 
possesses and adheres to the terms of his or her State authorization.
    Facilities Sec.  21.31(e)(1). Comment: The Service should not use 
the Minimum Standards for Wildlife Rehabilitation (MSWR) as guidelines 
because the MSWR includes references to requirements that are outside 
the purview of the Service.
    Service response: The rule has been revised to clarify that it 
refers only to the suggested caging dimensions within the MSWR, and not 
to the other topics within the MSWR.
    Comment: The Service should not require rehabilitators to conform 
to MSWR recommendations because they are too restrictive, and could be 
cost prohibitive.
    Service response: The rule does not require anyone to conform to 
the MSWR; rather it states that the Service will use the MSWR as 
guidelines in evaluating applicants' facilities. This provision 
reflects the Service's current policy. Use of the Minimum Standards 
provides the permit issuing office with preliminary parameters to use 
as guidelines for judging what constitutes suitable avian housing. The 
use of a common reference will foster consistent treatment for 
    Comment: The Service may be too rigid about enforcement of the MSWR 
caging dimensions.
    Service response: We have revised the language of this section to 
state that the Service will authorize variation from the standards 
where doing so is reasonable and necessary to accommodate a particular 
rehabilitator's circumstances, unless a determination is made that such 
variation will jeopardize migratory birds. The revised language states 
more strongly that the Service will apply flexibility in our use of the 
Minimum Standards. We will use the Minimum Standards as a ``starting 
point'' for evaluating what are acceptable cage sizes, without forcing 
rehabilitators to have cages with the published dimensions. The rule 
leaves room for variation, while providing the regulated community with 
basic parameters that the Service considers acceptable.
    Comment: The Service's reliance on the MSWR disenfranchises those 
rehabilitators who do not belong to IWRC and NWRA and those who are 
unaware of the existence of the standards document.
    Service response: We do not agree that the proposal would 
disenfranchise nonmembers of the IWRC/NWRA, since that MSWR document is 
widely available to members and nonmembers alike, and we have been 
using it and referencing it for years in the Standard Conditions for 
rehabilitation permits.
    Comment: The rule should not reference an external document (MSWR), 
because it is privately published and subject to change. Which edition 
does the Service mean to use?
    Service response: The rule has been revised to state that it refers 
to the 2000 (3rd Edition) of the MSWR.
    Comment: The Service should replace the use of the MSWR as 
guidelines with the exact language on Page 20, paragraph 2, of the 
MSWR. This would give the applicant more flexibility, but ensure high 
    Service response: The language to which the commenter refers does 
not include any mention of actual cage dimensions. We need established 
general parameters for what the Service will consider acceptable cage 
dimensions. Such parameters give the Service something consistent to 
work with in assessing applicants' facilities, as well as providing 
guidance for applicants to use in planning their facilities.
    Comment: The rule makes no provision for flight caging. Birds need 
to do more than open their wings to be conditioned for release.
    Service response: Cages used to condition birds for release are 
addressed in the MSWR as part of the caging dimensions that the Service 
will use as guidelines.
    Comment: No mention is made of overcrowding. No mention is made of 
providing clean, fresh water and food. No mention is made of the need 
to safely clean the cage.
    Service response: We have added the following conditions to the 
rule: ``Birds must not be overcrowded'' and ``You must provide the 
birds in your care with a diet that is appropriate and nutritionally 
approximates the natural diet consumed by the species in the wild, with 
consideration for the age and health of the individual bird.'' We also 
replaced the requirement to keep the floor clean and well-drained with 
the following condition: ``Enclosures must be kept clean, well-
ventilated, and hygienic.''
    Comment: The rule should require that birds not be in sight of 
predators, including predatory birds. Also, the rule should require 
facilities to have quarantine areas to protect against the spread of 
infectious diseases.
    Service response: While we view these suggestions as good advice, 
we consider them beyond the threshold of what ought to be mandated by 
this regulation.
    Comment: The caging dimensions of the MSWR are too ``ambitious'' 
for Unlimited Activity and Limited Activity birds, more than a 
reasonable minimum. Some reduction in overall sizes should be 
    Service response: We realize that some recommendations within the 
MSWR are viewed by some rehabilitators to be ambitious or optimum 
rather than minimal, and we agree that in many instances, some 
reduction in cage size will be acceptable. The rule provides for 
variation from the suggested dimensions of the MSWR where such 
variation will not jeopardize migratory birds.
    Comment: The MSWR recommends too much water depth in pools for 
wading birds. Two feet of water can be a struggle for a recuperating 
pelican. It could also result in hypothermia. These minimum depths 
should either be reduced or dropped entirely.
    Service Response: We appreciate observations like this because they 
can help us to evaluate facilities. Common sense information from 
applicants with experience is valuable and will help us to understand 
why variation from the standards may not jeopardize birds.
    Comment: The MSWR recommends wood as a caging material. However, 
this is a bad material to use in some areas, such as Florida, because 
it rapidly rots, fails to withstand tropical storms, and blocks healthy 
air flow in humid environments. Also, soft netting can entangle birds 
and interfere with air circulation.
    Service Response: The rule does not state what specific materials 
must be used for caging or netting, nor does it reference the MSWR's 
recommendations for materials.
    Comment: The facilities criteria in the rule give no guidance to 
permit applicants and leave too much to the discretion of the Service.

[[Page 61129]]

    Service Response: Most people who commented on the facilities 
standards of the rule were not concerned that too much discretion was 
left to the Service. Rather, many commenters felt that the standards 
will not allow for enough flexibility. As written, the rule reflects 
the Service's intent to be as specific as possible, while at the same 
time ensuring we remain flexible in authorizing reasonable variation 
from the specifics.
    Comment: The requirement that caging be large enough for the birds 
to fully extend their wings does not make sense for facilities that are 
used during the first stages of rehabilitation--when the birds' 
movement is intentionally restricted.
    Service Response: We deleted this provision from the final rule, 
since cage dimensions are already addressed by reference to the MSWR, 
which provide for the different types of cages recommended for 
different stages of recovery.
    Comment: The rule should not require permittees to dedicate one 
cage to just one species. People need to be able to ``decorate'' cages 
to suit different species. Will the Service have to approve every new 
cage to house a different species?
    Service Response: The rule does not require that cages be dedicated 
to particular species. As long as the cage is adequate for any species 
that will be housed in it, it is acceptable. The permit will authorize 
categories of species, not individual species. Facilities generally can 
be built to house types of species (e.g., large raptors, small 
waterbirds), not individual species (e.g., Swainson's Hawk, American 
Avocet). When rehabilitators receive species for which they do not have 
adequate facilities, they must transfer the birds to rehabilitators 
with such facilities.
    Comment: The prohibition against displaying birds to the public is 
unrealistic. Keeping the birds from hearing and seeing people (in 
particular hearing people) can be difficult. Also, rehabilitation birds 
are a good educational tool that generates public empathy and support 
for the facility.
    Service Response: The Service issues a permit to hold and use birds 
for educational programs, but it is not the rehabilitation permit. The 
purpose of the rehabilitation permit is to rehabilitate birds for 
reintroduction to the wild. Proximity to people can cause stress that 
impedes recovery, and exposure to human activity can habituate birds to 
people to the degree that they lose natural instincts necessary to 
survive in the wild. For those reasons, use of rehabilitation birds in 
educational formats remains prohibited in the rule. It is possible to 
insulate birds from the public. However, it is also true that some 
birds enter rehabilitation facilities already somewhat habituated to 
humans. The rule continues to provide that rehabilitation birds not be 
exposed to the public or used in educational formats. However, in rare 
cases, birds enter rehabilitation facilities already somewhat 
habituated to humans. Accordingly, the language of the rule has been 
revised to state that birds may not be displayed to the public ``unless 
you use video equipment, barriers, or other methods to reduce noise and 
exposure to humans to levels the birds would normally encounter in 
their habitat.'' (emphasis added).
    Comment: The rule should provide that facilities currently approved 
under the existing Special Purpose Rehabilitation permit will not fall 
out of compliance under the new rule.
    Service Response: The final rule contains a ``grandfather clause,'' 
which states, in part, ``If your facilities have already been approved 
on the basis of photographs and diagrams, and authorized under a valid 
Sec.  21.27 special purpose permit, then they are preapproved to be 
authorized under your new permit issued under this section, unless 
those facilities have materially diminished in size or quality from 
what was authorized when you last renewed your permit, or unless you 
wish to expand the authorizations granted by your permit (e.g., the 
number or types of birds you rehabilitate).''
    Subpermittees Sec.  21.31(e)(3). Comment: The rule should not 
authorize subpermittees, because their lack of experience results in 
higher mortality rates and imprinting. People should be encouraged to 
volunteer with permitted rehabilitators, but volunteers should not be 
allowed to take birds home to facilities outside those of the 
    Service Response: Volunteers are often critical to migratory bird 
rehabilitation. Few rehabilitators can afford to pay staff to do the 
work that volunteers do. In addition to the valuable services 
subpermittees provide to rehabilitators, the subpermittee system serves 
as a training and recruitment program for bringing new rehabilitators 
into the field. We do not believe that allowing subpermittees to take 
birds to off-site facilities endangers migratory birds, because the 
permittee is responsible for ensuring that subpermittees are qualified 
to provide adequate care. Off-site subpermittee facilities must meet 
the same standards as the permittee's facilities. For these reasons, we 
believe that allowing subpermittees to take birds to authorized off-
site facilities ensures better care for migratory birds by increasing 
the availability of round-the-clock care.
    Comment: Subpermittees should not have to be 18 or older. Many 
younger people can provide valuable services while gaining valuable 
knowledge and experience.
    Service Response: The rule requires that a person who will be 
performing activities that require permit authorization in the absence 
of the permittee or subpermittee must be a subpermittee, and it also 
requires that subpermittees be 18 or older. However, minors would be 
allowed to help in all other situations except those that involve 
actions for which a permit is required (handling the birds, basically) 
when the permittee or a subpermittee is not present. Since we would not 
issue a rehabilitation permit to minors, we will not authorize minors 
to perform activities that require a permit without supervision.
    Comment: Subpermittees' names should be on file, but including all 
their qualifications could be difficult for big facilities, where large 
numbers of subpermittees change frequently.
    Service Response: The application requirement to list the 
qualifications of the subpermittees has been deleted from the rule. 
However, this information is still requested on the permit application 
form 3-200-10b. We intend to drop this requirement from the form when 
our application forms are revised and reauthorized. Meanwhile, new 
subpermittees need only be named in writing to the issuing office 
without an accompanying description of their qualifications.
    Comment: Large facilities should not have to immediately submit the 
names of new subpermittees. This requirement is too burdensome with so 
much turnover amongst volunteers at large facilities. Instead, there 
should be a requirement to send in amendments every quarter listing the 
current subpermittees.
    Service Response: Not everyone who works under a rehabilitation 
permit needs to be on file with the Service as a subpermittee under 
that permit. Numerous people may be assisting at large rehabilitation 
centers. However, only those who will be conducting activities that 
require a permit in the absence of the permittee or a named 
subpermittee must be on file with the permit office. For instance, a 
facility may have 25 volunteers, but only four who conduct activities 
that require permit authority when the permittee is

[[Page 61130]]

offsite or otherwise unavailable to oversee activities conducted under 
his or her permit. In that case, only those four volunteers need to be 
on file with the Service as subpermittees. The remaining 21 people do 
not need to be named subpermittees as long as the permittee or one of 
the four listed subpermittees is present when they conduct activities 
that require permit authorization. We believe that, even for large 
centers with high volunteer turnover, the need to update named 
subpermittees will not be onerous, since not everyone assisting with 
permitted activities is required to be on file with the Service.
    Comment: This requirement to list subpermittees would be 
particularly burdensome as applied to those who transport birds to and 
from the facility. Transporters don't really have contact with the 
birds anyway. Could they merely be listed with the rehabilitator's 
records, and not with the permit office?
    Service response: Many transporters have frequent contact with the 
birds they pick up and deliver to rehabilitators, so we believe they 
should be treated like other subpermittees.
    Comment: The subpermittee system should be replaced by an 
apprentice licensing program with mandatory training.
    Service response: We believe the subpermittee requirements of the 
rule, together with the oversight of permitted rehabilitators, will 
provide sufficient training for persons entering the field of migratory 
bird rehabilitation. This system has been in place for many years, with 
few problems.
    Comment: The rule does not specify whether the subpermittee's 
facilities must meet the same requirements as the permittee's 
    Service response: The rule has been revised to state that the 
subpermittee's facilities must meet the same standards as the 
permittee's facilities.
    Comment: Do a subpermittee's facilities really need to be approved 
when it is just a shoe box for nestlings?
    Service response: The Service does not need to see photographs and 
diagrams of a shoe box. However, the address where any subpermittee 
will be caring for nestlings outside of the permittee's premises must 
be provided in writing to the permit office and authorized by the 
permit office before any nestlings are transferred to the alternate 
    Comment: The rule does not state whether subpermittees are bound by 
all the requirements of the regulation. Also, who is responsible to 
supervise off-site activities of subpermittees?
    Service response: The final rule states that ``As the primary 
permittee, you are legally responsible for ensuring that your 
subpermittees, staff, and volunteers adhere to the terms of your permit 
when conducting migratory bird rehabilitation activities.''
    Comment: Subpermittees who provide frequent or long-term care 
offsite should be required to obtain their own permits.
    Service response: We have considered mandating that permittees who 
provide frequent and/or, long-term care off-site obtain their own 
permits, but decline to do so because some people simply do not want to 
be permittees but may be able to provide quality care for birds under 
another person's permit. The rule requires the same standards for 
subpermittee facilities, and because it requires the permittee to be 
responsible for the subpermittee's rehabilitation activities, we 
believe that permittees will keep sufficient oversight over 
subpermittees to protect the birds under their care.
    Imprinting Sec.  21.31(e)(4)(i). Comment: The provision requiring 
imprinted birds to be turned over to the Service should be removed from 
the rule. Sometimes rehabilitators receive birds that have already been 
imprinted. And, some imprinting is likely to occur no matter what.
    Service response: The rule has been revised to clarify that the 
requirement to transfer imprinted birds to a third party applies only 
to birds that have been imprinted while under the care of the 
permittee. The permittee will be required to transfer any bird 
imprinted under his or her care to another facility specified by the 
Service. After no longer than 180 days, however, all surviving birds 
that are nonreleasable, whether imprinted or not, must be transferred 
to another permit (unless additional authorization is granted from the 
permit office)--since the rehabilitation permit only authorizes 
possession of birds undergoing rehabilitative care.
    Comment: Turning birds over to the Government will result in 
needless euthanasia. Rehabilitators will have to tell the public that 
the birds were transferred and possibly euthanized.
    Service response: In the rare situations when the Service has 
removed imprinted birds from a permittee, we have placed the birds with 
migratory bird education permit holders to use in educational programs.
    Comment: Some degree of imprinting will not interfere with a bird's 
ability to survive in the wild. If birds are too imprinted to survive 
in the wild, they should be placed in licensed sanctuaries.
    Service response: The intent of this provision is to require 
rehabilitators to take precautions to prevent birds from becoming so 
habituated to humans that they cannot survive in the wild. It is in the 
best interest of migratory birds as a whole that they not be perceived 
as pets by the public or treated as such by permittees. Therefore, the 
rule requires that rehabilitators take precautions to avoid imprinting, 
and provides that the Service may remove birds from the care of those 
who do not do so.
    Comment: The Service should not take imprinted birds away from 
rehabilitators because the Government doesn't have good facilities for 
holding them.
    Service response: We do not hold birds in these situations. We 
place them with other permittees whom we have identified prior to the 
    Comment: The rule should require that all imprinted birds that are 
not listed as threatened or endangered be euthanized.
    Service response: We do not agree that all non-listed imprinted 
birds should be euthanized. (See next comment.)
    Comment: Imprinted birds should be allowed to be used for education 
or for foster parenting.
    Service response: Imprinted birds may be used for foster parenting 
under the proposed rule--but the rule does not allow persons to use 
birds they themselves have allowed to become imprinted. The Service 
places imprinted birds with other permit holders for foster parenting 
or educational use.
    Release Sec.  21.31(e)(4)(ii) Comment: The 180-day limit for 
keeping birds in rehabilitation without additional authorization is too 
short. Many birds take over a year to be ready for release, plus it 
must be done during an appropriate season. A specific limit is 
arbitrary and not necessary. This decision should be left to the 
    Service response: Rarely do birds need to be kept longer than 180 
days. If more time is needed for rehabilitation, or if a bird must be 
held until the appropriate season for its release, the rule provides 
that the permittee need only contact the permit office for 
authorization. The instances where birds need longer than 180 days to 
be readied for release are infrequent enough that we do not consider 
this notification requirement to be burdensome. The longer birds remain 
in rehabilitation, the greater the chance they will become habituated 
to captivity. Moreover, without a limit, birds could be kept 
    Comment: The 180-day provision is good for experienced 
rehabilitators, but

[[Page 61131]]

less experienced rehabilitators should still be held to the 90-day 
period with permission needed to extend it.
    Service response: We do not agree that less experienced 
rehabilitators should be allotted less time to treat and condition 
birds for release.
    Comment: The proposed rule says nothing about the need to release 
birds as soon as possible. The 180-day period is too long. Birds will 
become habituated to people and the conditions of rehabilitation 
    Service response: The final rule states that birds must be released 
as soon as they are releasable (and seasonal conditions allow). 
Therefore, the 180-day limit will apply only to those birds that are 
not yet ready for release.
    Comment: Rehabilitators should not need to get permission to keep 
birds longer than 180 days for foster parenting.
    Service response: The purpose of the rehabilitation permit is to 
authorize possession of birds so that they may be provided the 
rehabilitative care necessary to return them to the wild. If a bird is 
not ready for release before the 180-day limit, but is still expected 
to be releasable in the future, and is suitable for foster parenting, 
it may be used for that purpose until released. If the rehabilitator's 
veterinarian determines that a bird is permanently injured and 
nonreleasable, the rehabilitator may submit a written request to 
possess the bird for foster-parenting purposes. If the request is 
justified and approved, the Regional permit office will amend the 
rehabilitator's permit to reflect this authority.
    Comment: The rule should include the guidelines for release that 
are contained within the Minimum Standards for Wildlife Rehabilitation, 
or it should provide some other guidance for when the bird is ready for 
    Service response: Generally, regulations should state what is 
required, not what is recommended. In the interest of flexibility, the 
rule does not establish regulatory requirements for release of birds. 
There are simply too many variables. The Minimum Standards and other 
publications of the rehabilitation community, as well as the guidance 
provided by peers, can serve as valuable sources for determining 
suitable conditions for release.
    Comment: Rehabilitators should not have to coordinate with State 
and local wildlife officials about where to release the birds. Most 
local and State wildlife officials would not want to be consulted so 
    Service response: This was a recommendation in the proposed rule, 
not a requirement. Since it was not a requirement, we have removed it 
from the final rule.
    Comment: State conservation agencies should be notified before 
rehabilitators release listed species.
    Service response: The rule provides that if a bird is of a species 
that is listed by the Federal Government as threatened or endangered, 
the rehabilitator must coordinate with the Service before releasing the 
bird. In many cases, we will involve the State because we work in 
partnership with State agencies on issues involving wildlife. However, 
some States may not wish the Federal Government to mandate State 
involvement in the release of federally listed species via Federal 
regulation. It is more appropriate that State regulations, rather than 
Federal, address whether or not rehabilitators must contact the State 
before releasing listed species.
    Comment: The rehabilitator should not need to contact the Service 
before releasing a threatened or endangered species.
    Service response: We strongly disagree with this comment. The 
determination of where to release an individual of a listed species is 
more critical than it is for nonlisted species in terms of overall 
success of the species. The optimal release site may be one where the 
individual bird is most likely to rejoin wild populations and 
reproduce. The Service's biologists will often have information the 
rehabilitator does not regarding the location and viability of wild 
populations of listed migratory bird species.
    Euthanasia Sec.  21.31(e)(4)(iii) and Sec.  21.31(e)(4)(iv). 
Comment: You should delete the requirement to euthanize birds that 
cannot feed themselves, perch upright, or ambulate; or are blind, or 
require amputation of a leg, foot, or wing at the elbow or above. Some 
birds with these conditions can lead useful lives as educational birds 
or foster parents for juvenile migratory birds in rehabilitation. These 
decisions should be left up to the permittee and the veterinarian.
    Service response: The euthanasia requirements are based on humane 
consideration for the birds. The handicaps and stress caused by these 
type of injuries frequently lead to repeated additional injuries and 
ailments throughout the duration of the bird's life. The Service does 
not believe that birds should be subjected to this trauma and poor 
quality of life for the sake of their human keepers, even if such birds 
could be used as educational tools. Educational programs face no 
shortage of less disabled nonreleasable birds. However, because 
extraordinary circumstances may warrant an exception to this rule, we 
have revised the rule to include the following narrow exemption: The 
permit issuing office may waive the euthanasia requirement where (1) a 
veterinarian makes a written recommendation that the bird should be 
kept alive despite the severity of its injuries, including an analysis 
of why the bird is not expected to experience the injuries and/or 
ailments that typically occur in birds with these injuries, and a 
commitment (from the veterinarian) to provide medical care for the bird 
for the duration of its life, including complete examinations at least 
once a year; and (2) a placement is available for the bird with a 
person or facility authorized to possess it (e.g., someone with a 
migratory bird education permit), where it will be provided that 
veterinary care.
    Comment: If a permitted rehabilitation facility is willing to take 
on the burden of caring for birds with the types of injuries for which 
the rule requires euthanasia, why not let them?
    Service response: First and foremost, the Service considers keeping 
a bird alive under these conditions to be inhumane (see above). 
Secondly, the purpose of the rehabilitation permit is to recover birds 
for release to the wild, not to retain birds in captivity. 
Nonreleasable birds must be transferred to another permit to be legally 
possessed. Most rehabilitated birds that are kept in captivity are 
transferred to an educational use permit, which requires that the bird 
be used for conservation education. The Service does not issue permits 
simply to keep birds in captivity. Allowing people to maintain 
migratory birds in sanctuary situations would compromise the status of 
migratory birds as wildlife. We believe that this outcome would be 
detrimental to migratory birds and would constitute an abrogation of 
our responsibility to protect and conserve wildlife.
    Comment: The mandatory euthanasia requirements will stop people 
from bringing sick and injured birds to rehabilitators.
    Service response: We think this scenario is highly unlikely. People 
bring birds to rehabilitators out of humane consideration for the 
birds. The euthanasia requirements are borne from the same humane 
consideration. If a bird has sustained trauma and injuries that are 
likely to cause the bird stress, pain, and/or further injury throughout 
the duration of its life, euthanasia is the kindest, most humane 
treatment people can provide.
    Comment: Euthanasia for these types of injuries should only be 
mandatory if

[[Page 61132]]

the bird does not acclimate well and cannot be placed.
    Service response: We disagree with this comment. Birds should not 
be subjected to amputations only to be euthanized later due to failure 
to acclimate. That is why the rule states that birds must be euthanized 
rather than undergo amputation.
    Comment: Euthanasia requirements should not be different for listed 
species. Rehabilitators should be authorized to euthanize any bird that 
is suffering due to an injury too serious to heal without having to 
call the Service for permission.
    Service response: The final rule continues to require 
rehabilitators to contact the issuing office before euthanizing listed 
species. The reason for this difference in treatment is that a rare 
situation could arise in which the suffering of the bird might be 
outweighed by a critical need to recover its species. For example, the 
addition of a blind endangered bird could be significant to a dwindling 
gene pool. The rule continues to provide that the rehabilitator may 
proceed with euthanasia if Service personnel are not available and the 
euthanasia is warranted because of humane considerations for the bird.
    Placement and Transfer of Birds Sec.  21.31(e)(4)(v) and Sec.  
21.31(e)(4)(vi). Comment: Rehabilitators should not have to get prior 
approval from the Service before placing nonreleasable birds or their 
parts or feathers with another permittee authorized to hold migratory 
    Service response: The requirement to obtain approval from the 
issuing office before transferring nonreleasable birds will ensure that 
birds are transferred to persons authorized to possess such birds, and 
not to someone whose permit has expired, or who already has the maximum 
number of birds authorized by his or her permit.
    Comment: Rehabilitators should be required--not just allowed--to 
donate dead specimens to institutions authorized by permit to possess 
migratory bird specimens or exempted from the permit requirements under 
Sec.  21.12.
    Service response: We encourage permittees to transfer dead 
specimens to other permit holders or exempt institutions who can use 
them. However, many rehabilitators are already stretched to their 
limits trying to care for the live birds they hold under their permit, 
and the Service believes they should not be burdened with an additional 
requirement to locate authorized persons to receive each dead specimen.
    Comment: The rule should not require that all dead eagles be sent 
to the National Eagle Repository. Rather, it should require permittees 
to notify the State so the State can do necropsy, and then send the 
birds to the Repository.
    Service response: Not all States wish to be contacted by 
rehabilitators with eagle carcasses. The rule has been revised to 
clarify that permittees must comply with State requirements requiring 
State notification and necropsy--where such requirements exist.
    Imping Feathers Sec.  21.31(e)(4)(viii). Comment: The rule does not 
specify what the Service considers to be a ``reasonable'' number of 
feathers that a rehabilitator may keep for imping purposes.
    Service response: We do not believe the regulation should establish 
a specific number of feathers that may be legally retained for imping 
purposes. Based on location, populations of species, and 
specialization, rehabilitators will need varying numbers of feathers of 
particular species. The final regulation states that a ``reasonable 
number'' will be based on the numbers and species for which the 
permittee regularly provides care.
    Taking blood samples Sec.  21.31(e)(4)(ix). Comment: The rule 
should allow rehabilitators to take blood and tissue samples for 
research that would aid rehabilitators and the species with which they 
work, as long as doing so does not jeopardize the individual bird. For 
example, blood may be drawn to establish normal values for particular 
species, or to research contagious diseases that are not human health 
    Service response: We have modified this provision to clarify that 
samples may be taken for purposes of diagnosis and recovery not just of 
the individual bird, but of the birds under the permittee's care, 
generally. For broader research purposes, the rehabilitator should 
obtain a migratory bird scientific collecting permit issued under 50 
CFR 21.23.
    Recall of birds Sec.  21.31(e)(4)(xi). Comment: The proposed rule 
states that migratory birds held under a rehabilitation permit remain 
under the stewardship of the Service and may be recalled at any time. 
Under what circumstances would the Government recall birds? What is the 
    Service response: The rule has been revised to clarify that 
permittees do not own the migratory birds they hold under this permit. 
The language concerning recall has been removed because we do not 
believe it is necessary that this regulation state that the Service 
would and does remove birds from the possession of permittees when the 
quality of care provided to the birds is not adequate or when a 
permittee violates wildlife laws, regulations, or the terms of the 
    Notification to the Service Sec.  21.31(e)(5) and throughout. 
Comment: The rule contains too many notification requirements. The 
requirements for permittees to contact the Service so often are too 
    Service response: The proposed regulation contained 11 discreet 
requirements for the permittee to notify the Service and/or gain 
additional authorization under certain circumstances. Ten of those 
notification requirements are not new in this regulation, but are 
carried over from the current standard conditions attached to all 
existing permits. Seven apply only to threatened and endangered 
species, and are needed so that the Service can determine the best 
placement for these birds. The Service is engaged in active recovery 
efforts for many listed migratory bird species, and because of the 
relative scarcity of listed species, the placement of each individual 
can have greater ramifications for the conservation of the species than 
is the case for non-listed species. Because listed species are 
relatively rare, most rehabilitators do not routinely encounter them, 
so these notification requirements will not be used often and should 
not create a burden for rehabilitators.
    Of the remaining three notifications, two should seldom be needed: 
the requirement to contact a Service law enforcement officer when there 
is reason to believe that a bird has been injured as the result of 
criminal activity; and the requirement to gain approval from the 
issuing office to keep a bird longer than 180 days. The final 
requirement--to obtain authorization from the issuing office before 
transferring a nonreleasable bird to another person--is an important 
safeguard to ensure that birds are placed with persons who are legally 
authorized to possess migratory birds.
    The only new notification provision the proposed rule contained was 
the requirement to contact the Service if the rehabilitator suspects 
that a bird has an avian virus or other contagious disease. We have 
revised that provision to require the permittee to contact his or her 
State or local authority that is responsible for monitoring the 
particular health threat, rather than notify the Service. In the case 
of West Nile Virus, for example, the public is usually advised to 
contact their county public health agency to report diseased

[[Page 61133]]

birds, but in some States a designated State agency is responsible for 
receiving those calls. While this information may be of some use to the 
Service, we do not have primary responsibility for responding to 
reports of contagious diseases that are considered to be public health 
threats, even when such diseases are carried by birds. Requiring 
rehabilitators to contact the responsible State or local agency, rather 
than the Service, will eliminate what would have been a redundant 
notification. Because rehabilitators are in a good position to 
contribute to nationwide efforts to monitor contagious avian diseases, 
the requirement to notify the appropriate State or local authority will 
benefit to the public by enhancing efforts to protect the health and 
safety of humans, livestock and wildlife.
    Comment: The Service should set up a 24-hour hotline to receive the 
required calls from rehabilitators, and it should be an 800 number.
    Service response: Aside from the notifications required in 
circumstances involving threatened and endangered species, which we 
believe will not be exercised often, the rule does not contain 
excessive requirements to contact the Service (see above).
    Comment: The rule relies too heavily on the Internet for obtaining 
phone numbers of other Service offices. Other forms of access to such 
information should be provided.
    Service response: We are revising our permit information tracking 
system so that it can record and generate the phone numbers for Service 
Law Enforcement offices that are local to the permittee. Permits will 
be issued using this new capacity, with the necessary contact 
information printed on the permit. The rule has been revised to reflect 
the fact that the contact information for these offices is listed on 
the permit.
    Comment: Rehabilitators should not have the burden of contacting 
the Service immediately upon receiving a threatened or endangered 
species. This provision fails to recognize the actual conditions under 
which rehabilitators are working. Immediate notification could 
jeopardize the bird, which may need immediate stabilization. Often 
personnel are not there to receive the calls (e.g., on weekends)
    Service response: The rule has been revised to require the 
permittee to contact the Service within 24 hours of receiving a 
threatened or endangered species. If Service personnel cannot be 
reached, you should leave a message.
    Comment: The proposed rule requires rehabilitators to report birds 
that appear to have been injured by criminal activity to both the 
Office of Law Enforcement and to the Migratory Bird Permit Office. 
Rehabilitators should not have to call two Service offices to report 
    Service response: We agree with this comment and have revised the 
rule to remove the requirement to notify the permit office.
    Comment: Immediate notification to law enforcement where birds 
appear to have been injured as the result of criminal activity is not 
practicable. Rehabilitators are often busy stabilizing bird(s). 
Instead, the requirement to notify the Service should be ``within 48 
    Service response: Service Law Enforcement personnel need to be 
notified immediately when it appears a crime has taken place. 
Otherwise, evidence needed to build a successful investigation may be 
compromised or lost before it can be collected.
    Comment: ``Criminal activity'' should be more clearly defined. 
Poisoning and electrocution should not be considered criminal activity.
    Service response: Poisoning and electrocution are considered 
criminal activity in many circumstances. Power companies and pesticide 
manufacturers and applicators are frequently held liable for killing 
birds, particularly when ample evidence exists that they knew or should 
have known that their actions were likely to kill birds. Electrocution 
of birds on power lines is generally considered a prosecutable 
violation, since reasonable industry-accepted measures have been 
identified that can be implemented to avoid killing migratory birds. We 
believe that the rule need not further specify what is meant by 
criminal activity, since it is not possible to define all the criminal 
activities that could take place, or always clearly identify under what 
circumstances a particular action is criminal. The provision requires 
that rehabilitators notify the Service when they have reason to believe 
that birds under their care were injured as the result of a criminal 
act, so that we have the opportunity to pursue the case, if 
    Comment: The rule should require permittees to contact their State 
conservation agencies as well as the Service whenever notification is 
    Service response: Not all States want these notifications. As a 
Federal agency, we will not impose this requirement on States that do 
not wish to be contacted. It is more appropriate for State regulations 
to address this requirement.
    Recordkeeping Sec.  21.31(e)(7). Comment: It would be useful to 
some States if the information required in the recordkeeping provisions 
included the county and distance to the nearest town.
    Service response: The information required to be kept in the 
permittee's records is the same information that we ask for in the 
annual report. It is not useful for our purposes to document the county 
or the nearest town, and we do not have enough staff to sift through 
extra information that we will not use. Also, we do not wish to burden 
permittees by requiring them to keep and submit information that we 
will not use. Those States that find that information useful may wish 
to include those items as reporting requirements in their State 
    Comment: Rehabilitators should be required to record the location 
where the bird was found, if known, because it is important for 
purposes of data collection and release. Also, the location of release 
should be required in records for enforcement purposes. The incident 
that caused the distress or injury should be recorded (e.g., collision 
with window, cat attack), if known, for purposes of future analysis. 
Records should include the name and contact information of the person 
who found and/or delivered the bird because of possible exposure to 
zoonotic diseases.
    Service response: While much of this information could be useful to 
the rehabilitator, or to a third party, we do not at this time have a 
need to collect this information. If permittees wish to keep these 
records, we encourage them to do so, but we see no reason to require 
information to be collected and submitted to us when we will not use 
    Comment: Why should the permittee be required to keep the records 
for 5 years? That should be the Service's responsibility. This 
requirement is an unnecessary burden on the permittee.
    Service response: The requirement that permittees keep records for 
5 years predates this rule and applies to all Service permits, and is 
codified at 50 CFR part 13.46. We also keep the information submitted 
via annual reports, but if discrepancies arise, permittees may benefit 
by being able to produce their own records.
    Additional Conditions May be Placed on the Face of the Permit. 
Sec.  21.31(e)(9). Comment: There should be no further reason to 
condition permits if a person meets the requirements set forth in the 
rule. This provision appears to contradict the rule's stated intent to 
``codify * * *, clarify * * *, and * * *specify'' migratory bird 
rehabilitation permit policy. The Service should specify what sort of 
``additional conditions'' are meant by

[[Page 61134]]

this provision. It's too open-ended and could be abused.
    Service response: We have revised this provision to clarify its 
meaning and scope. Our intent is to provide that permits may be 
tailored so that they differ from one another according to the 
circumstances of the applicants (e.g., what kind of experience and 
facilities they have). If all rehabilitation permits had exactly the 
same set of standard conditions and no additional conditions, every 
permittee would be qualified to rehabilitate any number of all types of 
migratory birds, without exception. For example, rehabilitators who 
intend to rehabilitate only nestlings do not need extensive caging. The 
Service needs to be able to differentiate what types of birds these 
nestling rehabilitators are authorized to rehabilitate from those a 
passerine rehabilitator is authorized to rehabilitate or those a large 
facility with flight cages or pools for waterbirds may rehabilitate. 
This can be done only if permits can be further conditioned on their 
face at the time of issuance (or later, if the permittee demonstrates 
that he or she has expanded the facilities and/or gained additional 
    Comment: The ``additional conditions'' provision would be more 
palatable if there existed some kind of review/appeal process for 
applicants to appeal.
    Service response: Regulations addressing the process for 
challenging permit decisions, including permit conditions, are set 
forth in 50 CFR 13.29. These regulations address procedures for all 
Service permits, and cover how to file a Request for Reconsideration to 
the issuing office. They also set forth procedures for filing a written 
appeal to the Regional Director if the applicant/permittee is 
dissatisfied with the determination made on the Request for 
    Comment: To avoid the creation of additional conditions, the 
Service should establish a multi-tiered permit incorporating different 
levels of experience and facilities standards, where each level has 
standardized conditions.
    Service response: We do not believe such a system could adequately 
capture all the variables and particulars that make one situation 
different from another. Additional conditions would still be necessary 
in order to accommodate these variables, or else some permits would 
simply have to be denied--which we do not view as a good alternative.
    Liability Clause Sec.  21.31(e)(10). Comment: As worded, the 
provision of the proposed rule that indemnifies the Service from 
liability could confer unreasonable liability to the permittee, 
resulting in lawsuits against rehabbers.
    Service response: We have removed this provision from the rule 
because permit liability for all Service permits is already set forth 
at 50 CFR 13.50, which reads: ``any person holding a permit under this 
subchapter B assumes all liability and responsibility for the conduct 
of any activity conducted under the authority of such permit.''
    Oil Spill Provisions Sec.  21.31(f). Comment: Why does the Service 
want to be notified whenever a dead bird is found at the site of an oil 
    Service response: There are a variety of legal aspects relating to 
oil spills, including the ability of the government to recover damages 
for birds and other wildlife killed or injured, and in some cases to 
bring criminal charges. In such cases, the Service must be able to 
document the number and locations of dead birds and other wildlife 
before they are removed from the site. Since it is not generally 
possible to determine until after the immediate cleanup or site 
stabilization whether this information will be needed, we collect it 
    Comment: How can the public get copies of Best Practices for Care 
of Migratory Birds During Oil Spill Response, the document referenced 
in the rule?
    Service response: We have inserted a footnote into the rule, 
providing information on how to obtain this document.
    Term of Permit Sec.  21.31(h). Comment: Permit tenure should be 1 
year only. If a 5-year tenure is included in the final regulation, the 
wording should be more clear as to whether all rehabilitation permits 
will be issued for 5 years, or whether some will have shorter terms.
    Service response: Because the majority of rehabilitators' 
circumstances will not substantially change from year to year, we do 
not see any purpose in renewing permits annually. We believe that the 
annual report requirement will allow the Service to monitor the factors 
that are most important to safeguard the welfare of birds held under 
rehabilitation permits. We do not wish to burden the permittees with an 
annual permit renewal, nor do we believe that processing every 
permittee's renewal every year is a good use of limited Service 
resources. Although most permits will have a tenure of 5 years under 
the final regulation, the wording ``No rehabilitation permit will have 
a term exceeding five (5) years'' allows the Service the flexibility to 
issue some rehabilitation permits for less than 5 years, if 
    Comment: The rule does not contain any provisions for the renewal 
    Service response: Regulations covering permit renewal for all 
Service-issued permits are set forth in 50 CFR 13 (General Permit 
Procedures). For the rehabilitation permit, as for other migratory bird 
permits, the permittee need not submit all of the information required 
in an original permit application. Instead, he or she should submit a 
Service permit renewal form, which is mailed to all permittees when 
their permits are nearing expiration. The form asks the permittee to 
certify that the information previously submitted (through either the 
original permit application or a subsequent renewal or amendment) is 
still accurate. If any required information has changed, the permittee 
must submit the updated information.
    Comment: The annual report/permit renewal process is not timed 
smoothly, with permits expiring at the end of the calendar year, but 
annual reports due at the end of the following January. Renewal permits 
should be sent separately (first), so the rehabilitator does not have 
to operate under an expired permit.
    Service response: We have adjusted the timing of the permit renewal 
process to address this problem. Rehabilitation permits will be issued 
to be valid starting on April 1, rather than January 1. As existing 
permits are renewed, they will be re-issued with a 5-year tenure, as 
provided by this rule. Permits will expire on March 31st rather than 
December 31st. This will result in a more logical, coordinated process 
wherein permittees can submit their annual reports and renewal requests 
together, and the renewal request will be received well before the 
expiration of the permit.
    Comment: Renewal should be correlated with State permit renewal.
    Service response: Permit tenure and renewal dates vary widely from 
State to State. Federal permits would have to have different tenures 
depending on the State in which the permittee resides. Tracking and 
maintaining renewals under these circumstances would be very difficult 
for the Service. Therefore, we will continue to process renewals at the 
same time each year.
    Will I need to apply for a new permit if I already have a Special 
Purpose--Rehabilitation permit? Sec.  21.31(i) Comment: The rule does 
not say whether current permit holders will be ``grandfathered,'' or 
whether they will have to reapply under the new regulations.
    Service response: Current permit holders need not take any special 

[[Page 61135]]

as a result of the new rule. When it is time to renew their permits, if 
they wish to continue rehabilitating migratory birds, they should apply 
for renewal using the Service permit renewal form mailed to them by the 
issuing office. Rehabilitation permits will be renewed under the new 
permit category created by this rule. In addition, the final rule 
contains a ``grandfather clause,'' which states, in part: ``If your 
facilities have already been approved on the basis of photographs and 
diagrams, and authorized under a valid Sec.  21.27 special purpose 
permit, then they are preapproved to be authorized under your new 
permit issued under this section, unless those facilities have 
materially diminished in size or quality from what was authorized when 
you last renewed your permit, or unless you wish to expand the 
authorizations granted by your permit (e.g., the number or types of 
birds you rehabilitate).''
    Inspections. Comment: The rule does not address rehabilitation 
facility inspections.
    Service response: Inspection of permittees' facilities is addressed 
in 50 CFR 13.47. The regulations provide that a Service Law Enforcement 
official (``the Director's agent'') may inspect the premises, wildlife, 
and records at ``any reasonable hour.''
    Comment: Facility inspections should be conducted before issuing 
each permit and then at regular intervals during the term of the permit 
to ensure that facilities maintain standards.
    Service response: Although we will conduct site visits prior to 
issuing some permits, we do not have the resources to inspect all 
applicants' facilities. As part of the application process, the 
applicant must submit photographs and diagrams of his or her 
facilities. These should provide enough information to determine 
whether most applicants' facilities are adequate. Many State 
conservation agencies have more resources available to them than we do, 
and are able to send officers out to perform inspections more 
regularly. Coordination between State agencies and the Service allows 
us to identify situations where problems exist and Federal inspection 
may be warranted.

Additional Comments

    Comment: Permitted rehabilitators should not be allowed to raise, 
rehabilitate, or release non-native species such as European starlings 
and house sparrows because these negatively affect native migratory 
bird species.
    Service response: The Service does not have the authority to 
prohibit possession or rehabilitation of birds that are not protected 
by the Federal laws we are charged with implementing. We agree that 
rehabilitation of common invasive species such as starlings and house 
sparrows could have a minor negative impact on conservation of native 
species, and we would prefer that exotic species not be released to the 
wild. However, this issue is the jurisdiction of State governments, 
which have primary regulatory authority on most matters concerning 
    Comment: The Service should transfer permitting authority to the 
States to administer, where States demonstrate they meet certain 
Federal standards.
    Service response: At this time, the majority of the States have not 
developed specific regulations regarding migratory bird rehabilitation. 
As of 1999, according to a study conducted by Allan M. Casey III and 
Shirley J. Casey (A Study of the State Regulations Governing Wildlife 
Rehabilitation During 1999), only 33 States had regulations addressing 
wildlife rehabilitation. These vary widely in terms of scope and the 
level of detail addressed. State regulations pertaining specifically to 
migratory bird rehabilitation are virtually nonexistent.
    Comment: The rule should require that the permittee be a member of 
either the National Wildlife Rehabilitators Association (NWRA), the 
International Wildlife Rehabilitation Council (IWRC), or both.
    Service response: We do not agree that membership in the NWRA or 
the IWRC should be a prerequisite for obtaining or maintaining a 
Federal migratory bird rehabilitation permit. Both associations have 
contributed to the increasing quality of wildlife rehabilitation, and 
they have much to offer rehabilitators in the way of continuing 
education, networking, and other services. However, both the NWRA and 
the IWRC are nongovernmental organizations and are not affiliated with 
the Service. The criteria of this rule should ensure that permittees 
have basic competence and qualifications necessary for migratory bird 
rehabilitation. As with any profession, rehabilitators will always be 
in a position to gain additional knowledge and skills. Membership in 
the NWRA and/or IWRC may provide a means of attaining this growth and 
improvement, should rehabilitators elect to join either or both 
    Comment: The rule should require permittees to provide evidence of 
continuing education every 2 years.
    Service response: While we strongly encourage permittees to attend 
classes, conferences, seminars, and presentations in order to increase 
knowledge and improve skills, we believe that the qualifications for 
obtaining the Federal permit, together with the experience gained by 
putting the permit to use, will guarantee a basic level of knowledge 
and experience sufficient to rehabilitate migratory birds, without our 
mandating additional formal training.
    Comment: Some provisions of the rule will interfere with recovery 
operations of chemical companies that operate under special purpose 
rehabilitation permits. The troubling provisions include the following 
requirements: listing all individuals on the permit (helpers at the 
chemical company recovery operations are usually seasonal college 
students and other temporary labor), conforming to facility 
requirements, maintaining a working relationship with veterinarians, 
and establishing a working relationship with another permitted 
rehabilitator. These recovery operations only hold birds long enough to 
clean off sodium carbonate (Na2CO3) or to allow 
fresh water to rinse off dilute phosphoric acid.
    Service response: Because such recovery efforts operate under 
parameters much different from those governing the activities of 
``typical'' migratory bird rehabilitators, the Service will continue to 
issue permits for this type of recovery operation under the Special 
Purpose permit (Sec.  21.27) rather than the permit category created by 
this rule.
    Comment: The rule has far too many new paperwork requirements.
    Service response: This rule does not introduce any new paperwork 
requirements. All reporting requirements remain unchanged from what has 
been required under the Special Purpose--Rehabilitation permit 

Endangered Species Act Consideration

    Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as 
amended (16 U.S.C. 1531, et seq.), requires all Federal agencies to 
``insure that any action authorized, funded, or carried out * * * is 
not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of [critical] habitat.'' The Service underwent intra-
Service consultation pursuant to section 7 of the ESA and determined 
that the activities authorized by this rule will not jeopardize listed 
species or result in destruction or adverse modification of critical 

Required Determinations

    Responsibilities of Federal Agencies To Protect Migratory Birds 

[[Page 61136]]

Order 13186). This rule has been evaluated for impacts to migratory 
birds, with emphasis on species of management concern, and is in 
accordance with the guidance in E.O. 13186.
    Regulatory Planning and Review (Executive Order 12866). In 
accordance with the criteria in Executive Order 12866, this rule is not 
a significant regulatory action. OMB has made this final determination 
of significance under E.O. 12866.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required.
    b. This rule will not create serious inconsistencies or otherwise 
interfere with other agencies' actions. The Fish and Wildlife Service 
is the only Federal agency responsible for enforcing the Migratory Bird 
Treaty Act.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
This rule does not have anything to do with the afore-mentioned 
    d. This rule does not raise novel legal or policy issues. 
Rehabilitation activities for migratory birds currently operate under a 
different permit than that proposed in this rule.
    Regulatory Flexibility Act. Under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq., as amended by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is 
required to publish a notice of rulemaking for any proposed or final 
rule, it must either certify that the rule will not have a significant 
economic impact on a substantial number of small entities (i.e., small 
business, small organizations, and small governmental jurisdictions) or 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small entities.
    We have examined this rule's potential effects on small entities as 
required by the Regulatory Flexibility Act. This rule requires 
applicants for migratory bird rehabilitation permits to pay the fee 
listed in the Service permit application fee schedule at 50 CFR 13.11. 
Currently, the Service waives fees for migratory bird rehabilitation 
permit applicants. This rulemaking reinstates the standard $25 permit 
application fee and extends the term of the permit to 5 years. The net 
effect is that approximately 2,500 persons will pay $25 every 5 years 
to obtain and renew migratory bird rehabilitation permits, amounting to 
$5 per year per rehabilitator. Therefore, we certify that this action 
will not have a significant economic impact on a substantial number of 
small entities. A final Regulatory Flexibility Analysis is not 
required. Accordingly, a Small Entity Compliance Guide is not required.
    Unfunded Mandates Reform Act. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. We have 
determined and certified pursuant to the Unfunded Mandates Reform Act, 
2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of 
$100 million or more in any given year on local or State government or 
private entities.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year; i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.
    Takings. In accordance with Executive Order 12630, the rule does 
not have significant takings implications. This rule will not result in 
the physical occupancy of property, the physical invasion of property, 
or the regulatory taking of any property. A takings implication 
assessment is not required.
    Federalism. In accordance with Executive Order 13132, and based on 
the discussions in Regulatory Planning and Review above, this rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. Because of the migratory nature of certain species of birds, 
the Federal Government has been given responsibility over these species 
by the Migratory Bird Treaty Act. This rule does not have a substantial 
direct effect on fiscal capacity, nor does it change the roles or 
responsibilities of Federal or State governments or intrude on State 
policy or administration.
    Civil Justice Reform. In accordance with Executive Order 12988, the 
Office of the Solicitor has determined that the rule does not unduly 
burden the judicial system, and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Department of the Interior 
has certified to the Office of Management and Budget that this rule 
meets the applicable standards provided in Sections 3(a) and 3(b)(2) of 
E.O. 12988.
    Paperwork Reduction Act. This rule does not contain new or revised 
information collection for which Office of Management and Budget 
approval is required under the Paperwork Reduction Act. Information 
collection associated with migratory bird permit programs has been 
approved by OMB under control number 1018-0022, which expires April 30, 
2004. The Service may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.
    National Environmental Policy Act. We have determined that this 
rule is categorically excluded under the Department's NEPA procedures 
in 516 DM 2, Appendix 1.10.
    Government-to-Government Relationship with Tribes. In accordance 
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR 
22951), E.O. 13175, and 512 DM 2, this rule will have no effect on 
federally recognized Indian tribes.

List of Subjects

50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

50 CFR Part 21

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

50 CFR Part 22

    Exports, Imports, Reporting and recordkeeping requirements, 
Transportation, Wildlife.

For the reasons set forth in this preamble, we amend 50 CFR chapter I 
as follows:


1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec.  17.21 to add paragraphs (c)(6), (c)(7), (d)(3), and 
(d)(4) to read as follows:

Sec.  17.21  Prohibitions.

* * * * *
    (c) * * *
    (6) Notwithstanding paragraph (c)(1) of this section, any person 
acting under a valid migratory bird rehabilitation permit issued 
pursuant to Sec.  21.31 of this subchapter may take endangered 
migratory birds without an endangered

[[Page 61137]]

species permit if such action is necessary to aid a sick, injured, or 
orphaned endangered migratory bird, provided the permittee:
    (i) Notifies the issuing Migratory Bird Permit Office immediately 
upon receipt of such bird (contact information for your issuing office 
is listed on your permit and on the Internet at http://offices.fws.gov
); and
    (ii) Disposes of or transfers such birds, or their parts or 
feathers, as directed by the Migratory Bird Permit Office.
    (7) Notwithstanding paragraph (c)(1) of this section, persons 
exempt from the permit requirements of Sec.  21.12(c) and (d) of this 
subchapter may take sick and injured endangered migratory birds without 
an endangered species permit in performing the activities authorized 
under Sec.  21.12(c) and (d).
    (d) * * *
    (3) Notwithstanding paragraph (d)(1) of this section, any person 
acting under a valid migratory bird rehabilitation permit issued 
pursuant to Sec.  21.31 of this subchapter may possess and transport 
endangered migratory birds without an endangered species permit when 
such action is necessary to aid a sick, injured, or orphaned endangered 
migratory bird, provided the permittee:
    (i) Notifies the issuing Migratory Bird Permit Office immediately 
upon receipt of such bird (contact information for your issuing office 
is listed on your permit and on the Internet at http://offices.fws.gov
); and
    (ii) Disposes of or transfers such birds, or their parts or 
feathers, as directed by the Migratory Bird Permit Office.
    (4) Notwithstanding paragraph (d)(1) of this section, persons 
exempt from the permit requirements of Sec.  21.12(c) and (d) of this 
subchapter may possess and transport sick and injured endangered 
migratory bird species without an endangered species permit in 
performing the activities authorized under Sec.  21.12(c) and (d).
* * * * *


3. The authority citation for part 21 is revised to read as follows:

    Authority: 16 U.S.C. 703-712; Pub. L. 106-108; 16 U.S.C. 668a.

4. Revise Sec.  21.2(b) to read as follows:

Sec.  21.2  Scope of regulations.

* * * * *
    (b) This part, except for Sec.  21.12(a), (c), and (d) (general 
permit exceptions); Sec.  21.22 (banding or marking); Sec.  21.29 
(Federal falconry standards); and Sec.  21.31 (rehabilitation), does 
not apply to the bald eagle (Haliaeetus leucocephalus) or the golden 
eagle (Aquila chrysaetos), for which regulations are provided in part 
22 of this subchapter.
* * * * *

5. Amend Sec.  21.12 to add paragraphs (c) and (d) to read as follows:

Sec.  21.12  General exceptions to permit requirements.

* * * * *
    (c) Employees of Federal, State, and local wildlife and land 
management agencies; employees of Federal, State, and local public 
health agencies; and laboratories under contract to such agencies may 
in the course of official business collect, possess, transport, and 
dispose of sick or dead migratory birds or their parts for analysis to 
confirm the presence of infectious disease. Nothing in this paragraph 
authorizes the take of uninjured or healthy birds without prior 
authorization from the Service. Additionally, nothing in this paragraph 
authorizes the taking, collection, or possession of migratory birds 
when circumstances indicate reasonable probability that death, injury, 
or disability was caused by factors other than infectious disease and/
or natural toxins. These factors may include, but are not limited to, 
oil or chemical contamination, electrocution, shooting, or pesticides. 
If the cause of death of a bird is determined to be other than natural 
causes or disease, Service law enforcement officials must be contacted 
without delay.
    (d) Licensed veterinarians are not required to obtain a Federal 
migratory bird permit to temporarily possess, stabilize, or euthanize 
sick and injured migratory birds. However, a veterinarian without a 
migratory bird rehabilitation permit must transfer any such bird to a 
federally permitted migratory bird rehabilitator within 24 hours after 
the bird's condition is stabilized, unless the bird is euthanized. If a 
veterinarian is unable to locate a permitted rehabilitator within that 
time, the veterinarian must contact his or her Regional Migratory Bird 
Permit Office for assistance in locating a permitted migratory bird 
rehabilitator and/or to obtain authorization to continue to hold the 
bird. In addition, veterinarians must:
    (1) Notify the local U.S. Fish and Wildlife Service Ecological 
Services Office immediately upon receiving a threatened or endangered 
migratory bird species. Contact information for Ecological Services 
offices can be located on the Internet at http://offices.fws.gov;
    (2) Euthanize migratory birds as required by Sec.  21.31(e)(4)(iii) 
and Sec.  21.31(e)(4)(iv), and dispose of dead migratory birds in 
accordance with Sec.  21.31(e)(4)(vi); and
    (3) Keep records for 5 years of all migratory birds that die while 
in their care, including those they euthanize. The records must 
include: the species of bird, the type of injury, the date of 
acquisition, the date of death, and whether the bird was euthanized.

6. Add Sec.  21.31 to subpart C to read as follows:

Sec.  21.31  Rehabilitation permits.

    (a) What is the permit requirement? Except as provided in Sec.  
21.12, a rehabilitation permit is required to take, temporarily 
possess, or transport any migratory bird for rehabilitation purposes. 
However, any person who finds a sick, injured, or orphaned migratory 
bird may, without a permit, take possession of the bird in order to 
immediately transport it to a permitted rehabilitator.
    (b) What are the general permit provisions?
    (1) The permit authorizes you to:
    (i) Take from the wild or receive from another person sick, 
injured, or orphaned migratory birds and to possess them and provide 
rehabilitative care for them for up to 180 days;
    (ii) Transport such birds to a suitable habitat for release, to 
another permitted rehabilitator's facilities, or to a veterinarian;
    (iii) Transfer, release, or euthanize such birds;
    (iv) Transfer or otherwise dispose of dead specimens; and
    (v) Receive, stabilize, and transfer within 48 hours types of 
migratory bird species not authorized by your permit, in cases of 
emergency. If a rehabilitator authorized to care for the bird is not 
available within that timeframe, you must contact the issuing office 
for authorization to retain the bird until it can be transferred.
    (2) The permit does not authorize the use of migratory birds for 
educational purposes.
    (c) How do I apply for a migratory bird rehabilitation permit? You 
must apply to the appropriate Regional Director--Attention Migratory 
Bird Permit Office. You can find addresses for the appropriate Regional 
Directors in Sec.  2.2 of subchapter A of this chapter. Your 
application package must consist of the following:
    (1) A completed application (Form 3-200-10b);
    (2) A copy of your State rehabilitation permit, license, or other 
authorization, if one is required in your State; and
    (3) A check or money order made payable to the ``U.S. Fish and 
Wildlife Service'' in the amount of the

[[Page 61138]]

application fee for permits issued under this section listed in Sec.  
13.11 of this chapter.
    (d) What criteria will the Service consider before issuing a 
permit? (1) Upon receiving an application completed in accordance with 
paragraph (c) of this section, the Regional Director will decide 
whether to issue you a permit based on the general criteria of Sec.  
13.21 of this chapter and whether you meet the following requirements:
    (i) You must be at least 18 years of age with at least 100 hours of 
hands-on experience, gained over the course of at least 1 whole year, 
rehabilitating the types of migratory birds you intend to rehabilitate 
(e.g., waterbirds, raptors), or comparable experience. Up to 20 hours 
of the 100-hour time requirement may be fulfilled by participation in 
migratory bird rehabilitation seminars and courses.
    (ii) Your facilities must be adequate to properly care for the 
type(s) of migratory bird species you intend to rehabilitate, or you 
must have a working relationship with a person or organization with 
such facilities.
    (iii) You must have an agreement with a licensed veterinarian to 
provide medical care for the birds you intend to rehabilitate, unless 
you are a licensed veterinarian.
    (iv) You must have a State permit, license, or other authorization 
to rehabilitate migratory birds if such authorization required by your 
    (2) In issuing a permit, the Regional Director may place 
restrictions on the types of migratory bird species you are authorized 
to rehabilitate, based on your experience and facilities as well as on 
the specific physical requirements and behavioral traits of particular 
    (e) What are the standard conditions for this permit? In addition 
to the general permit conditions set forth in part 13 of this chapter, 
rehabilitation permits are subject to the following conditions:
    (1) Facilities. You must conduct the activities authorized by this 
permit in appropriate facilities that are approved and identified on 
the face of your permit. In evaluating whether caging dimensions are 
adequate, the Service will use as a guideline the standards developed 
by the National Wildlife Rehabilitators Association and the 
International Wildlife Rehabilitation Council (Minimum Standards for 
Wildlife Rehabilitation, 2000).\1\ The Regional Migratory Bird Permit 
Office will authorize variation from the standards where doing so is 
reasonable and necessary to accommodate a particular rehabilitator's 
circumstances, unless a determination is made that such variation will 
jeopardize migratory birds. However, except as provided by paragraph 
(f)(2)(i) of this section, all facilities must adhere to the following 

    \1\ Copies may be obtained by contacting either the National 
Wildlife Rehabilitators Association: 14 North 7th Avenue, St. Cloud 
MN 56303-4766, http://www.nwawildlife.org/default.asp; or the 
International Wildlife Rehabilitation Council: 829 Bancroft Way, 
Berkeley, CA 94710, http://www.iwrc-online.org.

    (i) Rehabilitation facilities for migratory birds must be secure 
and provide protection from predators, domestic animals, undue human 
disturbance, sun, wind, and inclement weather.
    (ii) Caging must be made of a material that will not entangle or 
cause injury to the type of birds that will be housed within.
    (iii) Enclosures must be kept clean, well-ventilated, and hygienic.
    (iv) Birds must not be overcrowded, and must be provided enough 
perches, if applicable.
    (v) Birds must be housed only with compatible migratory bird 
    (vi) Birds may not be displayed to the public unless you use video 
equipment, barriers, or other methods to reduce noise and exposure to 
humans to levels the birds would normally encounter in their habitat. 
You may not use any equipment for this purpose that causes stress or 
harm, or impedes the rehabilitation of any bird.
    (2) Dietary requirements. You must provide the birds in your care 
with a diet that is appropriate and nutritionally approximates the 
natural diet consumed by the species in the wild, with consideration 
for the age and health of the individual bird.
    (3) Subpermittees. Except as provided by paragraph (f)(2)(ii) of 
this section, anyone who will be performing activities that require 
permit authorization under paragraph (b)(1) of this section when you or 
a subpermittee are not present, including any individual who transports 
birds to or from your facility on a regular basis, must either possess 
his or her own Federal rehabilitation permit, or be authorized as your 
subpermittee by being named in writing to your issuing Migratory Bird 
Permit Office. Subpermittees must be at least 18 years of age and 
possess sufficient experience to tend the species in their care. 
Subpermittees authorized to care for migratory birds at a site other 
than your facility must have facilities adequate to house the species 
in their care, based on the criteria of paragraph (e)(1) of this 
section. All such facilities must be approved by the issuing office. As 
the primary permittee, you are legally responsible for ensuring that 
your subpermittees, staff, and volunteers adhere to the terms of your 
permit when conducting migratory bird rehabilitation activities.
    (4) Disposition of birds under your care. (i) You must take every 
precaution to avoid imprinting or habituating birds in your care to 
humans. If a bird becomes imprinted to humans while under your care, 
you will be required to transfer the bird as directed by the issuing 
    (ii) You may not retain migratory birds longer than 180 days 
without additional authorization from your Regional Migratory Bird 
Permit Office. You must release all recuperated birds to suitable 
habitat as soon as seasonal conditions allow, following recovery of the 
bird. If the appropriate season for release is outside the 180-day 
timeframe, you must seek authorization from the Service to hold the 
bird until the appropriate season. Before releasing a threatened or 
endangered migratory bird, you must coordinate with your issuing 
Migratory Bird Permit Office.
    (iii) You must euthanize any bird that cannot feed itself, perch 
upright, or ambulate without inflicting additional injuries to itself 
where medical and/or rehabilitative care will not reverse such 
conditions. You must euthanize any bird that is completely blind, and 
any bird that has sustained injuries that would require amputation of a 
leg, a foot, or a wing at the elbow or above (humero-ulnar joint) 
rather than performing such surgery, unless:
    (A) A licensed veterinarian submits a written recommendation that 
the bird should be kept alive, including an analysis of why the bird is 
not expected to experience the injuries and/or ailments that typically 
occur in birds with these injuries and a commitment (from the 
veterinarian) to provide medical care for the bird for the duration of 
its life, including complete examinations at least once a year;
    (B) A placement is available for the bird with a person or facility 
authorized to possess it, where it will receive the veterinary care 
described in paragraph (e)(4)(iii)(A) of this section; and
    (C) The issuing office specifically authorizes continued 
possession, medical treatment, and rehabilitative care of the bird.
    (iv) You must obtain authorization from your issuing Migratory Bird 
Permit Office before euthanizing endangered and threatened migratory 
bird species. In rare cases, the Service may designate

[[Page 61139]]

a disposition other than euthanasia for those birds. If Service 
personnel are not available, you may euthanize endangered and 
threatened migratory birds without Service authorization when prompt 
euthanasia is warranted by humane consideration for the welfare of the 
    (v) You may place nonreleasable live birds that are suitable for 
use in educational programs, foster parenting, research projects, or 
other permitted activities with persons permitted or otherwise 
authorized to possess such birds, with prior approval from your issuing 
Migratory Bird Permit Office.
    (vi)(A) You may donate dead birds and parts thereof, except 
threatened and endangered species, and bald and golden eagles, to 
persons authorized by permit to possess migratory bird specimens or 
exempted from permit requirements under Sec.  21.12.
    (B) You must obtain approval from your issuing office before 
disposing of or transferring any live or dead endangered or threatened 
migratory bird specimen, parts, or feathers.
    (C) You must send all dead bald and golden eagles, and their parts 
and feathers to: National Eagle Repository, Building 128, Rocky 
Mountain Arsenal, Commerce City, CO 80022. If your State requires you 
to notify State wildlife officers of a dead bald or golden eagle before 
sending the eagle to the Repository you must comply with State 
regulations. States may assume temporary possession of the carcasses 
for purposes of necropsy.
    (D) Unless specifically required to do otherwise by the Service, 
you must promptly destroy all other dead specimens by such means as are 
necessary to prevent any exposure of the specimens to animals in the 
    (vii) With authorization from your issuing Migratory Bird Permit 
Office, you may hold a nonreleasable bird longer than 180 days for the 
purpose of fostering juveniles during their rehabilitation. You may 
also use birds you possess under an educational permit to foster 
    (viii) You may possess a reasonable number of feathers for imping 
purposes, based on the numbers and species of birds for which you 
regularly provide care.
    (ix) You may draw blood and take other medical samples for purposes 
of the diagnosis and recovery of birds under your care, or for transfer 
to authorized facilities conducting research pertaining to a contagious 
disease or other public health hazard.
    (x) You may conduct necropsies on dead specimens in your 
possession, except that you must obtain approval from your Regional 
Migratory Bird Permit Office before conducting necropsies on threatened 
or endangered species.
    (xi) This permit does not confer ownership of any migratory bird. 
All birds held under this permit remain under the stewardship of the 
U.S. Fish and Wildlife Service.
    (5) Notification to the U.S. Fish and Wildlife Service.
    (i) You must notify your issuing Migratory Bird Permit Office 
within 24 hours of acquiring a threatened or endangered migratory bird 
species, or bald or golden eagle, whether live or dead. You may be 
required to transfer these birds to another facility designated by the 
    (ii) You must immediately notify the local U.S. Fish and Wildlife 
Service Law Enforcement Office if you have reason to believe a bird has 
been poisoned, electrocuted, shot, or otherwise subjected to criminal 
activity. Contact information for your local Service Law Enforcement 
office is listed on your permit, or you can obtain it on the Internet 
at http://offices.fws.gov.
    (iii) If the sickness, injury, or death of any bird is due or 
likely due to avian virus, or other contagious disease or public health 
hazard, you must notify and comply with the instructions given by the 
State or local authority that is responsible for tracking the suspected 
disease or hazard in your location, if that agency is currently 
collecting such information from the public.
    (6) You must maintain a working relationship with a licensed 
veterinarian. If your working relationship with your original 
cooperating veterinarian is dissolved, you must establish an agreement 
within 30 days with another licensed veterinarian to provide medical 
services to the birds in your care, and furnish a copy of this 
agreement to the issuing office.
    (7) Recordkeeping. You must maintain complete and accurate records 
of all migratory birds that you receive, including for each bird the 
date received, type of injury or illness, disposition, and date of 
disposition. You must retain these records for 5 years following the 
end of the calendar year covered by the records.
    (8) Annual report. You must submit an annual report that includes 
the information required by paragraph (e)(7) for the preceding calendar 
year to your issuing Migratory Bird Permit Office by the date required 
on your permit. You may complete Service Form 3-202-4, or submit your 
annual report from a database you maintain, provided your report 
contains all, and only, the information required by Form 3-202-4.
    (9) At the discretion of the Regional Director, we may stipulate on 
the face of your permit additional conditions compatible with the 
permit conditions set forth in this section, to place limits on numbers 
and/or types of birds you may possess under your permit, to stipulate 
authorized location(s) for your rehabilitation activities, or otherwise 
specify permitted activities, based on your experience and facilities.
    (f) How does this permit apply to oil and hazardous waste spills? 
Prior to entering the location of an oil or hazardous material spill, 
you must obtain authorization from the U.S. Fish and Wildlife Service 
Field Response Coordinator or other designated Service representative 
and obtain permission from the On-Scene Coordinator. All activities 
within the location of the spill are subject to the authority of the 
On-Scene Coordinator. The U.S. Fish and Wildlife Service is responsible 
for the disposition of all migratory birds, dead or alive.
    (1) Permit provisions in oil or hazardous material spills. (i) In 
addition to the rehabilitation permit provisions set forth in paragraph 
(b) of this section, when under the authority of the designated U.S. 
Fish and Wildlife Service representative this permit further authorizes 
you to temporarily possess healthy, unaffected birds for the purpose of 
removing them from imminent danger.
    (ii) This permit does not authorize salvage of dead migratory 
birds. When dead migratory birds are discovered, a Service law 
enforcement officer must be notified immediately in order to coordinate 
the handling and collection of evidence. Contact information for your 
local Service Law Enforcement office is listed on your permit and on 
the Internet at http://offices.fws.gov. The designated Service 
representative will have direct control and responsibility over all 
live migratory birds, and will coordinate the collection, storage, and 
handling of any dead migratory birds with the Service's Division of Law 
    (iii) You must notify your issuing Migratory Bird Permit Office of 
any migratory birds in your possession within 24 hours of removing such 
birds from the area.
    (2) Conditions specific to oil and hazardous waste spills. (i) 
Facilities. Facilities used at the scene of oil or hazardous waste 
spills may be temporary and/or mobile, and may provide less space and 
protection from noise and disturbance than facilities authorized under 
paragraph (e)(1) of this

[[Page 61140]]

section. Such facilities should conform as closely as possible with the 
facility specifications contained in the Service policy titled Best 
Practices for Migratory Bird Care During Oil Spill Response.\2\

    \2\ You can obtain copies of this document by writing to the 
U.S. Fish and Wildlife Service, Division of Environmental Quality, 
4401 North Fairfax Drive, MS 322, Arlington, VA, 22203.

    (ii) Subpermittees. In cases of oil and hazardous waste spills, 
persons who assist with cleaning or treating migratory birds at the on-
scene facility will not be required to have a rehabilitation permit or 
be a subpermittee; however, volunteers must be trained in rescue 
protocol for migratory birds affected by oil and hazardous waste 
spills. A permit (or subpermittee designation) is required to perform 
extended rehabilitation of such birds, after initial cleaning and 
treating, at a subsequent location.
    (g) Will I also need a permit from the State in which I live? If 
your State requires a license, permit, or other authorization to 
rehabilitate migratory birds, your Federal migratory bird 
rehabilitation permit will not be valid if you do not also possess and 
adhere to the terms of the required State authorization, in addition to 
the Federal permit. Nothing in this section prevents a State from 
making and enforcing laws or regulations consistent with this section 
that are more restrictive or give further protection to migratory 
    (h) How long is a migratory bird rehabilitation permit valid? Your 
rehabilitation permit will expire on the date designated on the face of 
the permit unless amended or revoked. No rehabilitation permit will 
have a term exceeding 5 years.
    (i) Will I need to apply for a new permit under this section if I 
already have a special purpose permit to rehabilitate migratory birds, 
issued under Sec.  21.27 (Special purpose permits)? (1) If you had a 
valid Special Purpose--Migratory Bird Rehabilitation Permit issued 
under Sec.  21.27 on November 26, 2003, your permit will remain valid 
until the expiration date listed on its face. If you renew your permit, 
it will be issued under this section.
    (2) If your original permit authorization predates permit 
application procedures requiring submission of photographs and diagrams 
for approval of your facilities, and your facilities have never been 
approved by the migratory bird permit office on the basis of such 
photographs and diagrams, you must submit photographs and diagrams of 
your facilities as part of your renewal application. If those 
facilities do not meet the criteria set forth under this section, your 
permit may be renewed for only 1 year. We will re-evaluate your 
facilities when you seek renewal in a year. If you have made the 
improvements necessary to bring your facilities into compliance with 
paragraph (e)(1) of this section, and the other criteria within this 
section for permit issuance are met, your permit may be renewed for up 
to the full 5-year tenure.
    (3) If your facilities have already been approved on the basis of 
photographs and diagrams, and authorized under a valid Sec.  21.27 
special purpose permit, then they are preapproved to be authorized 
under your new permit issued under this section, unless those 
facilities have materially diminished in size or quality from what was 
authorized when you last renewed your permit, or unless you wish to 
expand the authorizations granted by your permit (e.g., the number or 
types of birds you rehabilitate). Regulations governing permit renewal 
are set forth in Sec.  13.22 of this chapter.


7. The authority citation for part 22 continues to read as follows:

    Authority: 16 U.S.C. 668a; 16 U.S.C. 703-712; 16 U.S.C. 1531-

8. Amend Sec.  22.11 by revising the first sentence to read as follows:

Sec.  22.11  What is the relationship to other permit requirements?

    You may not take, possess, or transport any bald eagle (Haliaeetus 
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts, 
nests, or eggs of such birds, except as allowed by a valid permit 
issued under this part, 50 CFR part 13, and/or 50 CFR part 21 as 
provided by Sec.  21.2, or authorized under a depredation order issued 
under subpart D of this part. * * *
* * * * *

    Dated: October 14, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks, Department 
of the Interior.
[FR Doc. 03-26823 Filed 10-24-03; 8:45 am]