[Federal Register: March 26, 2007 (Volume 72, Number 57)]
[Proposed Rules]               
[Page 14066-14069]
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: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, propose changes in the 
regulations governing migratory bird permitting. We propose to 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 buildings in which the birds may pose a threat to 
themselves, to public health and safety, or to commercial interests.

DATES: Send comments on this proposal by May 25, 2007.

ADDRESSES: For detailed instructions on submitting comments, please see 
``Public Participation'' below.

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

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public health and safety, or to commercial interests, we propose to 
allow the removal of any migratory bird, except a threatened or 
endangered species, a bald eagle, or a golden eagle, from 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 
promptly released to the wild. This regulation does not allow removal 
of birds or nests from the outside of buildings without a permit.
    We believe that this regulatory addition will facilitate removal of 
birds from buildings--an action that would otherwise require a 
migratory bird permit. Our proposed changes are detailed below, in the 
Proposed Regulation Promulgation section of this document.

Public Participation

    You may submit comments, identified by RIN 1018-AV10, by any of the 
following methods:
     E-mail address for comments: BirdsinBuildings@fws.gov. 
Include RIN number 1018-AV10 in the subject line of the message.
     Fax: 703-358-2217.
     Mail: Chief, Division of Migratory Bird Management, U.S. 
Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-
4107, Arlington, VA 22203-1610.
     Hand Delivery: Division of Migratory Bird Management, U.S. 
Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, 
Arlington, VA 22203-1610.
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
    Following review and consideration of comments, we will issue a 
final rule on the proposed regulation changes.
    Instructions: When submitting electronic comments, please include 
your name and return address in your message, and identify it as 
comments on RIN 1018-AV10 in the subject line of your message.
    When submitting written comments, please include your name and 
return address in your letter and identify it as comments on RIN 1018-
AV10. To facilitate compilation of the Administrative Record for this 
action, you must submit written comments on 8\1/2\-inch-by-11-inch 
    All comments on the proposed rule, including any personal 
information received, will be available for public inspection during 
normal business hours at Room 4091 at the U.S. Fish and Wildlife 
Service, Division of Migratory Bird Management, 4501 North Fairfax 
Drive, Arlington, VA 22203-1610. The complete file for this proposed 
rule is available, by appointment, during normal business hours at the 
same address. You may call 703-358-1825 to make an appointment to view 
the file.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. An individual respondent may request that we withhold 
his or her home address from the rulemaking record, which we will honor 
to the extent allowable by law. There also may be circumstances in 
which we would withhold from the rulemaking record a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses available 
for public inspection in their entirety. We will not consider anonymous 

Required Determinations

Clarity of This Regulation

    Executive Order (E.O.) 12866 requires each agency to write 
regulations that are easy to understand. We invite your comments on how 
to make this rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the rule clearly 
stated? (2) Does the rule contain technical language or jargon that 
interferes with its clarity? (3) Does the format of the rule (grouping 
and order of sections, use of headings, paragraphing, etc.) aid or 
reduce its clarity? (4) Would the rule be easier to understand if it 
were divided into more (but shorter) sections? (A ``section'' appears 
in bold type and is preceded by the symbol ``Sec.  ''and a numbered 
heading; for example: ``Sec.  21.12-General exceptions to permit 
requirements.'') (5) Does the description of the rule in the 
SUPPLEMENTARY INFORMATION section of the preamble help you to 
understand the proposed rule? What else could we do the make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You also may e-mail comments to Exsec@ios.doi.gov.

Regulatory Planning and Review

    In accordance with the criteria in E.O. 12866, this rule is not a 
significant regulatory action. The Office of Management and Budget 
makes the final determination of significance under E.O. 12866.
    a. This proposed rule would not raise novel legal or policy issues. 
The proposed provision is in compliance with other laws, policies, and 
    b. This rule would not have an annual economic effect of $100 
million or more, or 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 negligible costs 
associated with this rule.
    c. This rule would not create inconsistencies with other agencies' 
actions. The rule 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.
    d. This rule would not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
There are no entitlements, grants, user fees, or loan programs 
associated with the regulation of birds in buildings.

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 would not have a 
significant economic impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act, and have determined that this action would not have a 
significant economic impact on a substantial number of small entities, 
because the

[[Page 14068]]

changes we are proposing 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 
    The costs associated with this change to our regulations would be 
negligible or non-existent. Consequently, we certify that because this 
proposed rule would not have a significant economic effect on a 
substantial number of small entities, a regulatory flexibility analysis 
is not required.
    This rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It 
would not have a significant impact on a substantial number of small 
    a. This rule would not have an annual effect on the economy of $100 
million or more.
    b. This rule would 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 would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

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 would not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. Actions 
under the proposed regulation would not affect small government 
activities in any significant way.
    b. This rule would 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.


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


    This rule would not have sufficient Federalism effects to warrant 
preparation of a Federalism assessment under E.O. 13132. It would not 
interfere with the States' ability to manage themselves or their funds. 
No significant economic impacts are expected to result from allowing 
individuals, businesses, or government offices to remove migratory 
birds from buildings.

Civil Justice Reform

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

Paperwork Reduction Act

    We examined these regulations under the Paperwork Reduction Act of 
1995. There would 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 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 
would 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 would 
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 (E.O. 13211)

    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 would 
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 Proposed Action

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

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 proposed change to 
our regulations would 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.

Proposed Regulation Promulgation

    For the reasons stated in the preamble, we propose to 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);

[[Page 14069]]

    b. Redesignating paragraphs (b), (c), and (d) as paragraphs (b) 
(1), (b)(2), and (c) and adding a heading to new paragraph (b);
    c. Adding a new heading to new 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 the following conditions. 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.
    (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) After capture, you must promptly release the bird or birds to 
the wild in habitat suitable for the species.
    (4) If a bird is injured or orphaned during the removal, the 
property owner is responsible for promptly transferring it to a 
federally permitted migratory bird rehabilitator.
    (5) 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 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.
    (6) 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).
    (7) You will need 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).
    (8) 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.
    (9) If a nest, eggs, or nestlings are present, you must seek the 
assistance of a federally-permitted migratory bird rehabilitator in 
removing them. The rehabilitator is then responsible for handling them 

    Dated: March 2, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-5120 Filed 3-23-07; 8:45 am]