[Federal Register: October 5, 2007 (Volume 72, Number 193)]
[Rules and Regulations]               
[Page 56926-56929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AV10

Migratory Bird Permits; Removal of Migratory Birds From Buildings

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations 
governing migratory bird permitting. We amend 50 CFR part 21 to allow 
removal of migratory birds (other than federally listed threatened or 
endangered species, bald eagles, and golden eagles) from inside 
buildings in which the birds may pose a threat to themselves, to public 
health and safety, or to commercial interests.

DATES: This rule is effective on November 5, 2007.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, at the Division of Migratory Bird 
Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, 
Room 4091, Arlington, Virginia 22203-1610.

FOR FURTHER INFORMATION CONTACT: George T. Allen, Wildlife Biologist, 
Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 



    The U.S. Fish and Wildlife Service is the Federal agency delegated 
the primary responsibility for managing migratory birds. The delegation 
is authorized by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et 
seq.), which implements conventions with Great Britain (for Canada), 
Mexico, Japan, and the Soviet Union (Russia). Raptors (birds of prey) 
are afforded Federal protection by the 1972 amendment to the Convention 
for the Protection of Migratory Birds and Game Animals, February 7, 
1936, United States-Mexico, as amended; the Convention between the 
United States and Japan for the Protection of Migratory Birds in Danger 
of Extinction and Their Environment, September 19, 1974; and the 
Convention Between the United States of America and the Union of Soviet 
Socialist Republics (Russia) Concerning the Conservation of Migratory 
Birds and Their Environment, November 26, 1976. A list of migratory 
bird species protected by the MBTA can be found at 50 CFR 10.13.
    To simplify removal of migratory birds from buildings in which 
their presence may be a threat to the birds, to public health and 
safety, or to commercial interests, we will allow the removal of any 
migratory bird, except a threatened or endangered species, a bald 
eagle, or a golden eagle, from the inside of any building in which a 
bird might be trapped, without requiring a migratory bird permit to do 
so. The bird must be captured using a humane method and, in most cases, 
immediately released to the wild. This regulation does not allow 
removal of birds or nests from the outside of buildings without a 
permit. Removal of active nests from inside buildings must be conducted 
by a federally permitted migratory bird rehabilitator.
    This regulatory addition will facilitate removal of birds from 
buildings, which would otherwise require a migratory bird permit. Our 
changes are detailed below in the Regulation Promulgation section of 
this document.

What Comments on the Proposed Rule Did We Receive?

    We received six sets of comments on the proposed rule. The comments 
raised relatively few issues, which we discuss here.
    Issue: One commenter believed that the rule should include bird 
    Response: Removal or destruction of nests of most species of birds 
when the nests are not in use is allowed. With this regulations change, 
an active nest may

[[Page 56927]]

be removed from inside a building with the assistance of a permitted 
rehabilitator. We clarified the relevant language in this rule.
    Issue: A commenter suggested that the words ``and for buildings 
undergoing renovation or demolition'' be added after the words 
``commercial interests.''
    Response: Renovation and demolition of buildings can be conducted 
outside the nesting season, which is relatively short for most species. 
A nest of any species protected under one or more of the Migratory Bird 
Conventions is protected during the nesting season. This provision is 
unchanged by this rule.
    Comment: ``We suggest this proposal should more specifically 
indicate what time frame is meant by `promptly' as used in the sections 
on releasing birds and on transferring injured and orphaned birds to 
    Response: We replaced the term ``promptly'' with ``immediately,'' 
and qualified this requirement slightly by requiring that an exhausted, 
ill, injured, or orphaned bird be sent to a rehabilitator.
    Comment: ``I fear that if you open up this wildlife management 
category as is proposed, there will be a resulting unorthodox influx of 
raptors into warehouse buildings across the United States to clean-out 
invasive bird species. The claim will be they came through the doors 
when, actually, many will have been intentionally introduced by 
unscrupulous lay-people and store managers having introduced the raptor 
to its captivity and peril but unable to get it out. I already see and 
hear about many of these every year. However, something does need to 
happen to improve the raptor recovery service response time to these 
corporations, but something also needs to be done to prevent the 
criminal activity of capturing a free raptor in the environment and 
placing it in harms way into a ``box store'' environment to clean-out 
invasive species. All too often, these magnificent wild raptors perish 
trying to get out or by being mishandled.''
    Response: In most cases this action is not legal, but we added 
language to the regulation to address this concern.

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget has determined, in accordance 
with the criteria in Executive Order (E.O.) 12866, that this rule is 
not a significant regulatory action.
    a. This rule will not have an annual economic effect of $100 
million or more. It will not adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. A 
cost-benefit and economic analysis thus is not required. There are 
minimal costs associated with this rule.
    b. This rule does not create inconsistencies with other agencies' 
actions. It deals solely with governance of migratory bird permitting 
in the United States. No other Federal agency has any role in 
regulating activities with migratory birds.
    c. There are no entitlements, grants, user fees, or loan programs 
associated with the regulation of birds in buildings.
    d. This rule does not raise novel legal or policy issues, and is in 
compliance with other laws, policies, and regulations.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small entities (i.e., 
small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act, and we certify that this action will not have a 
significant economic impact on a substantial number of small entities, 
because the changes we are making are intended primarily to simplify 
removal of birds from structures in which the birds may either pose a 
threat to public health and safety or commercial interests, or be at 
risk themselves.
    The costs associated with this change to our regulations would be 
very small. This rule is not a major rule under SBREFA (5 U.S.C. 
804(2)). It will not have a significant impact on a substantial number 
of small entities, so a regulatory flexibility analysis of this action 
is not required.
    a. This rule will not have an annual effect on the economy of $100 
million or more.
    b. This rule will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions.
    c. This rule will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. Actions 
under the regulation will not affect small government activities in any 
significant way.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year. It is not a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act.


    In accordance with E.O. 12630, the rule will not have significant 
takings implications. A takings implication assessment is not required. 
This rule does not contain a provision for taking of private property.


    No significant economic impacts are expected to result from 
allowing individuals, businesses, or government offices to remove 
migratory birds from buildings. This rule will not interfere with the 
States' ability to manage themselves or their funds, nor does it have 
sufficient Federalism effects to warrant preparation of a Federalism 
assessment under E.O. 13132.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the rule will not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    We examined these regulations under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). There will be no new information 
collection requirements associated with this change to our regulations. 
We may not collect or sponsor, nor is a person required to respond to, 
a collection of information unless it displays a

[[Page 56928]]

currently valid Office of Management and Budget control number.

National Environmental Policy Act

    We have analyzed this rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and part 516 of 
the U.S. Department of the Interior Manual (516 DM). A change to our 
regulations allowing the removal of migratory birds from buildings will 
not have a significant environmental impact.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have 
evaluated potential effects on Federally recognized Indian Tribes and 
have determined that there are no potential effects. This rule will not 
interfere with the Tribes' ability to manage themselves or their funds 
or to regulate migratory bird activities on Tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued E.O. 13211 addressing 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. Because this rule would 
affect only removal of birds from structures in limited circumstances, 
it is not a significant regulatory action under E.O. 12866, and will 
not significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Environmental Consequences of the Action

    The change we are making is to allow people to remove birds 
protected under the Migratory Bird Treaty Act from buildings. We do not 
expect significant environmental impacts of this action.
    Socioeconomic. We do not expect the action to have discernible 
socioeconomic impacts.
    Migratory bird populations. This rule will not alter the take of 
migratory birds from the wild. It will not change migratory bird 
    Endangered and Threatened Species. The regulation is for migratory 
birds other than threatened or endangered species. It will not affect 
threatened or endangered species or habitats important to them.

Compliance With Endangered Species Act Requirements

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this chapter'' (16 
U.S.C. 1536(a)(1)). It further states that the Secretary must ``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'' (16 U.S.C. 1536 (a)(2)). The change to our 
regulations will not affect listed species.


    The author of this rulemaking is Dr. George T. Allen, U.S. Fish and 
Wildlife Service, Division of Migratory Bird Management, 4401 North 
Fairfax Drive, Mail Stop 4107, Arlington, VA 22203-1610.

List of Subjects in 50 CFR Part 21

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

Regulation Promulgation

For the reasons stated in the preamble, we amend part 21 of subchapter 
B, chapter I, title 50 of the Code of Federal Regulations, as follows.


1. The authority citation for part 21 continues to read as follows:

    Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 
703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public 
Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703.

2. Amend Sec.  21.12 by:
a. Revising the introductory paragraph and paragraph (a);
b. Redesignating paragraphs (b), (c), and (d) as paragraphs (b)(1), 
(b)(2), and (c) and adding a new heading to paragraph (b);
c. Adding a heading to newly designated paragraph (c); and
d. Adding a new paragraph (d), to read as set forth below.

Sec.  21.12  General exceptions to permit requirements.

    The following persons or entities under the following conditions 
are exempt from the permit requirements:
    (a) Employees of the Department of the Interior (DOI): DOI 
employees authorized to enforce the provisions of the Migratory Bird 
Treaty Act of July 3, 1918, as amended (40 Stat. 755; 16 U.S.C. 703-
(711), may, without a permit, take or otherwise acquire, hold in 
custody, transport, and dispose of migratory birds or their parts, 
nests, or eggs as necessary in performing their official duties.
    (b) Employees of certain public and private institutions:
    (1) * * *
    (2) * * *
    (c) Licensed veterinarians:
* * * * *
    (d) General public: Any person may remove a migratory bird from the 
interior of a building or structure under certain conditions.
    (1) You may humanely remove a trapped migratory bird from the 
interior of a residence or a commercial or government building without 
a Federal permit if the migratory bird:
    (i) Poses a health threat (for example, through damage to 
    (ii) Is attacking humans, or poses a threat to human safety because 
of its activities (such as opening and closing automatic doors);
    (iii) Poses a threat to commercial interests, such as through 
damage to products for sale; or
    (iv) May injure itself because it is trapped.
    (2) You must use a humane method to capture the bird or birds. You 
may not use adhesive traps to which birds may adhere (such as glue 
traps) or any other method of capture likely to harm the bird.
    (3) Unless you have a permit that allows you to conduct abatement 
activities with a raptor, you may not release a raptor into a building 
to either frighten or capture another bird.
    (4) You must immediately release a captured bird to the wild in 
habitat suitable for the species, unless it is exhausted, ill, injured, 
or orphaned.
    (5) If a bird is exhausted or ill, or is injured or orphaned during 
the removal, the property owner is responsible for immediately 
transferring it to a federally permitted migratory bird rehabilitator.
    (6) You may not lethally take a migratory bird for these purposes. 
If your actions to remove the trapped migratory bird are likely to 
result in its lethal take, you must possess a Federal Migratory Bird 
Permit. However, if a bird you are trying to remove dies, you must 
dispose of the carcass immediately unless you have reason to believe 
that a museum or scientific institution might be able to use it. In 
that case, you should contact your nearest Fish and Wildlife Service 
office or your State wildlife agency about donating the carcass.

[[Page 56929]]

    (7) For birds of species on the Federal List of Threatened or 
Endangered Wildlife, provided at 50 CFR 17.11(h), you may need a 
Federal threatened or endangered species permit before removing the 
birds (see 50 CFR 17.21 and 50 CFR 17.31).
    (8) You must have a permit from your Regional migratory bird 
permits office to remove a bald eagle or a golden eagle from a building 
(see 50 CFR Part 22).
    (9) Your action must comply with State and local regulations and 
ordinances. You may need a State, Tribal, or Territorial permit before 
you can legally remove the bird or birds.
    (10) If an active nest with eggs or nestlings is present, you must 
seek the assistance of a federally permitted migratory bird 
rehabilitator in removing the eggs or nestlings. The rehabilitator is 
then responsible for handling them properly.
    (11) If you need advice on dealing with a trapped bird, you should 
contact your closest Fish and Wildlife Service office or your State 
wildlife agency.

    Dated: September 4, 2007.
David M. Verhey,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-19712 Filed 10-4-07; 8:45 am]