[Federal Register: September 21, 2010 (Volume 75, Number 182)]
[Proposed Rules]
[Page 57413-57426]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21se10-18]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 10, 13, 21, and 22
[FWS-R9-MB-2008-0103]
[91200-1231-9BPP]
RIN 1018-AI97
Migratory Bird Permits; Possession and Educational Use
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (``we'' or ``the Service'')
is proposing a permit regulation to authorize the possession and use of
migratory birds in educational programs and exhibits. The proposed rule
also would revise existing regulations authorizing public exhibition of
eagles. In addition, it would remove the permit exemption for some
public institutions for possession of live migratory birds and
migratory bird specimens, and clarify that birds held under the
exemption must be used for conservation education. For specimens such
as feathers, parts, carcasses, nonviable eggs, and nests, the
regulations would be updated and clarified to more accurately reflect
the types of institutions that may hold specimens for public
educational purposes. The regulations would allow exempt institutions
to transfer migratory birds to individuals and entities authorized by
permit to possess them. Sale and purchase by permittees and exempt
institutions would be restricted to properly-marked, captive-bred
birds.
DATES: Submit written comments on or before December 20, 2010, to the
address below.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U. S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AI97; Division of Policy and Directives Management; U.
S. Fish and Wildlife Service; 4401 North Fairfax Drive, Suite 222;
Arlington, VA 22203-1610.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory
Bird Management, U. S. Fish and Wildlife Service, 4401 North Fairfax
Drive, Mailstop 4107, Arlington, VA 22203-1610; or 703-358-2329.
SUPPLEMENTARY INFORMATION:
Public Comments
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. Please note
that we may not consider comments we receive after the date specified
in the DATES section in our final determination.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that we will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Division of Migratory Bird Management, 4501 North
Fairfax Drive, 4\th\ Floor, Arlington, VA 22203-1610; telephone 703-
358-2329.
Background
The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.)
prohibits possession of any bird protected by treaties between the
United States and Canada, Mexico, Japan, and Russia unless the
possession is authorized under regulation and/or by permit. Birds
protected by the MBTA are referred to as ``migratory birds.'' The
Service regulates the use of migratory birds through regulations at
parts 20 and 21 of title 50 of the Code of Federal Regulations (CFR).
Unless exempt under regulations at 50 CFR 21.12, you must obtain a
permit from the Service to possess a migratory bird for use in
educational programs. Because there are currently no specific
educational-use permit regulations, we authorize educational activities
that involve migratory birds using Special Purpose permits issued under
50 CFR 21.27, which provides for permits for activities not
specifically authorized by an existing permit category. In the absence
of specific regulations addressing educational activities using
migratory birds, the terms and requirements governing this activity are
currently set forth in a list of standard conditions issued with each
permit.
[[Page 57414]]
Through this rulemaking, we propose to establish educational-use
permit regulations to hold live nonreleasable or captive-bred migratory
birds and nonliving specimens thereof for use in teaching people about
migratory bird conservation and ecology. The public input we receive in
response to this proposed rule will help us develop final regulations
that will provide consistency and clarity in the administration of
permits for migratory bird educational activities nationwide, and
ensure that migratory birds are used humanely and in a manner
consistent with the protections afforded by the MBTA.
We drafted this proposed regulation with the benefit of public
comment received in response to an advance notice of proposed
rulemaking published in the Federal Register on October 13, 2005 (70 FR
59710). In that notice, we solicited public input on facilities
standards, experience criteria, and commercialization, among other
issues associated with use of migratory birds for educational purposes.
We received more than 200 comments, most of which were quite detailed
and substantive, and were integral to crafting this proposed
regulation.
The primary purpose of the proposed permit is to authorize
conservation education programs. Each program would have to provide a
message about migratory bird conservation, natural history, biology, or
ecology. As one commenter suggested, the permit's purpose is to
``instill in a person memorable information that benefits birds or the
natural world.'' The message does not necessarily need to be spoken to
be conveyed; creating an attitude can be as important as imparting
information. As long as the program addresses conservation, natural
history, biology, and/or ecology, it may also contain additional
educational content on other topics such as Native American cultural
heritage or falconry. The requirement to have a conservation message
does not preclude presentations with migratory birds from being
entertaining. As another commenter put it, ``laughter and amusement
open pathways for receptive learning. The goal is to inspire.''
However, this permit would not allow use of a migratory bird in a
presentation in which the bird is induced to perform tricks or imitate
human or other behavior unnatural for the species.
Under no circumstance would we authorize the use of migratory birds
to endorse or promote any product or service, other than the
conservation objectives of a sponsor, the permit holder, or the U.S.
Fish and Wildlife Service. As long as this condition is met, migratory
birds may be used in conservation education programs at commercial
venues. We believe that commercial venues can provide opportunities to
bring conservation messages to large numbers of people who may not
otherwise be exposed to this type of educational program.
The permit would require permittees to conduct a minimum of 12
public educational programs per year that are open to the general
public or presented at an accredited public or private school with the
birds held under the permit. A facility such as a zoo, in which birds
are displayed in permanent enclosures and not presented in
demonstrations or programs, must be open to the general public at least
400 hours per year. The requirement that displays or programs be open
to the general public or presented in a formal educational setting is
integral to the purpose of the permit, because migratory birds are a
public resource, and because it is the Service's mission to further
their conservation. We would issue educational permits only when the
public would benefit by gaining a greater understanding of the wild
nature and conservation status of migratory birds.
Being open to the general public does not mean that presentations
conducted under this permit must be free of charge. For migratory bird
permits, we define ``open to the general public'' as ``available to the
general public and not restricted to any individual or set of
individuals, whether or not a fee is charged.'' Therefore, the required
programs cannot be limited to specific audiences; all members of the
public would have to be eligible to attend the programs. The exception
would be classrooms in accredited schools (because most accredited
schools are open to the public, even though specific classes may be
closed to a wider audience). To illustrate what is meant by ``open to
public,'' a wedding reception limited to guests who received a wedding
invitation is not open to the general public, whereas, an educational
program offered at a national park is. As another example, Disneyland
is open to the general public because anyone who is willing to pay the
admission fee may be admitted.
Provided that the conservation education component is a prominent
element within the presentation, the programs are open to the general
public, no product is endorsed, and all the conditions for possessing
birds under the permit are satisfied, this permit would be available to
for-profit institutions.
As long as the permittee satisfies the requirements for being open
to the general public, he or she can also present programs for private
or invitation-only gatherings, provided that the required conservation
message is presented and all the other conditions of the permit are
met.
We recognize that the requirement that each bird be used in a
minimum of 12 public educational programs per year could be hard on old
or ailing birds. If it would no longer be humane to use a bird for
educational programs, the educator could request an exception from
their permit office from using that bird in the required 12 programs.
We propose to use two publications as guidance for evaluating
facilities and experience for the housing and care of migratory birds
and eagles held under this permit. For raptors, we would use the
housing recommendations of the University of Minnesota Raptor Center's
Raptors in Captivity: Guidelines for Care and Management (2007). For
other migratory birds, we would use the National Wildlife
Rehabilitator's Association's Wildlife in Education: A Guide for the
Care and Use of Program Animals (2004). The recommendations in the two
publications would serve as guidance for the issuing office; we could
authorize variation from the standards where doing so would be
reasonable and necessary to accommodate a particular educator's
circumstances, and would not adversely affect any bird held by the
educator. The proposed rule contains a ``grandfather clause,'' which
states, in part: ``If your facilities have already been approved by the
Service on the basis of photographs and diagrams, and authorized under
a Sec. 21.27 Special Purpose-Education permit or Sec. 22.21 Eagle
Exhibition permit, then they are 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 hold).''
Similar to the provisions of the migratory bird rehabilitation
regulations, this proposed rule would require subpermittees to be at
least 18 years old. This requirement does not prevent a permittee from
allowing younger persons to participate in the activities authorized by
permit; a volunteer is not required to be a subpermittee if he or she
is supervised by the permittee or a subpermittee, and this would apply
to persons under 18 years of age.
[[Page 57415]]
This rule would limit the sale and purchase of birds held under the
permit to the following categories: (1) raptors bred under a Raptor
Propagation permit and marked with a seamless metal band provided by
the Service, (2) waterfowl bred under a Waterfowl Sale and Disposal
permit and marked in accordance with 50 CFR 21.13, and (3) game birds
bred under a Special Purpose Game Bird permit and marked in accordance
with 50 CFR 21.13. Permittees would be authorized to sell and purchase
such birds to and from one another and to and from holders of other
types of permits that authorize purchase and sale of such birds.
Transfer of other migratory birds held under the permit would be
allowed by donation only. Permittees would not be authorized to breed
birds held under the permit.
The proposed rule contains guidance we would use to evaluate
applicants' experience to determine what species they are qualified to
hold. The table addresses only the more commonly-used raptors, as well
as corvids, because those are the species for which we have some
information on which to base our criteria, including recommendations
from the publications noted above and from commenters responding to our
2005 notice regarding this proposed rulemaking. In response to
commenters, we placed the more commonly-used species into four
experience categories, according to the skill and experience needed to
handle them. Some species of migratory birds not listed in the table
may be suitable for educational use, but we would need more information
to assess their suitability and the experience needed to handle and
care for them. Accordingly, we are specifically soliciting input from
persons with some knowledge of and/or experience with the 30 MBTA-
protected raptor species not listed in the table, as well as other
species of migratory birds, regarding temperament and other physical
and behavioral traits that could affect their suitability for
educational use.
To clarify terms used in this rulemaking, we propose several new
regulatory definitions that would apply to migratory bird permits. The
terms we propose to define are ``nonreleasable bird,'' ``open to the
general public,'' ``public institution,'' ``public museum,'' and
``public zoological park.'' We also propose to amend the definition of
``public'' in 50 CFR part 10.12 to remove its application to migratory
bird and eagle permits, since we are clarifying how it applies to
migratory bird permits through the above definitions and to eagle
permits through definitions we propose under part 22 (see below).
Eagle Educational Use
This proposed rule would also revise regulations governing
possession and use of bald eagles (Haliaeetus leucocephalus) and golden
eagles (Aquila chrysaetos) for educational purposes. Currently,
regulations governing the use of eagles for exhibition purposes are at
50 CFR 22.21. The existing eagle exhibition permit regulations are
combined with eagle scientific permit regulations and addressed in the
same section at 50 CFR 22.21. This proposed rule separates the two
activities to create stand-alone eagle exhibition (educational-use)
regulations.
These proposed eagle educational-use regulations largely
incorporate by reference the regulations proposed herein for possessing
other MBTA-protected birds for educational purposes. They differ only
in a few aspects. First, all live eagles held under the regulation
would have to be nonreleasable (whereas permits for other migratory
bird species would authorize possession of captive-bred, as well as
nonreleasable, birds). Second, as mandated by the Bald and Golden Eagle
Protection Act (Eagle Act) (16 U.S.C. 668 et seq.), only public
museums, public scientific societies, and public zoological parks are
allowed under the Eagle Act to obtain permits to exhibit eagles. The
rule proposes regulatory definitions for ``public museum,'' ``public
scientific society,'' and ``public zoological park'' to remove
ambiguity about who may qualify to receive eagle educational use
permits. The new definitions are intended to be as broad as possible
within the intent of the Eagle Act so as not to unnecessarily restrict
placement of eagles for educational use with otherwise qualified
individuals and organizations. See our October 13, 2005, Federal
Register notice at 70 FR 59712, for more discussion of this issue.
Third, differences between the MBTA and the Eagle Act necessitate
different requirements for international transport of eagle specimens
than for other migratory bird specimens. The Eagle Act and implementing
regulations at 50 CFR 22.12(a) prohibit permanent export or import of
bald eagles. Thus, the proposed eagle regulations differ from the
proposed migratory bird regulations because they incorporate existing
regulations for exhibitions of eagle specimens that are taken out of
and returned to the United States. Except for re-formatting and the
addition of a three-year maximum permit duration, the eagle transport
regulations would be unchanged.
Fourth, under the proposed eagle educational-use regulations,
permits would authorize possession of non-living eagle specimens only
if they were lawfully acquired prior to March 30, 1994, with very
limited exceptions. That is the date that the Service began
implementing Director's Order 69, which requires Service employees to
ensure that all eagle specimens are sent to the National Eagle
Repository, the Service's distribution center for eagle parts and
feathers for Native American religious use. Consequently, these
regulations provide that we may permit transfer and possession only of
specimens that were already lawfully possessed prior to that date,
unless the specimen lacks ceremonial value due to poor condition or
some other reason. As provided in Director's Order 69, the Regional
Director may make exceptions for important resource needs.
Finally, the eagle educational-use regulations, in keeping with
Director's Order 69, would require all carcasses and feathers that are
not needed for imping (feather replacement) purposes for other live
eagles to be sent to the National Eagle Repository.
Please note that although eagle scientific permit regulations are
included in this proposed rulemaking, we are not making any revisions
to those regulations at this time, except (1) as is necessary to
separate the exhibition regulations from them (such as removing the
phrases ``and exhibition'' and ``or exhibition'' throughout the
regulation), and (2) changing the name of the permits from ``Scientific
collecting purposes'' to ``Scientific purpose,'' since those permits do
not always authorize collection of specimens from the wild. To remove
the references to ``exhibition'' from Sec. 22.21, it was necessary to
publish the text of the entire section, but we are not proposing any
other revisions to it at this time.
Adding the definitions of ``public museum,'' ``public scientific
society,'' and ``public zoological park'' to the part 22 eagle
regulations could affect scientific permitting by clarifying
eligibility of applicants. However, the new definitions are not
intended to change the provisions of the eagle scientific permit
regulations; we propose them here simply to clarify existing provisions
for all eagle permits.
In separating the permit regulations for eagle exhibition from
eagle scientific collecting, ``take'' of eagles would no longer be
authorized under the exhibition regulations. This ``revision'' actually
maintains the status quo: the only take of eagles that we have
permitted under the existing eagle exhibition/scientific regulations
was for
[[Page 57416]]
scientific collecting. The proposed regulations continue our policy of
not issuing permits to take eagles from the wild for exhibition
purposes.
The current eagle exhibition/scientific permit regulations are
silent as to whether eagles used under the permit must be
nonreleasable. Nevertheless, in keeping with the Eagle Act's
requirement that the Secretary of the Interior shall issue permits to
take and possess eagles only when ``it is compatible with the
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a),
we have issued permits for eagle exhibition only for nonreleasable
eagles. Taking eagles from the wild is necessary for some scientific
research and other purposes, but it is not required for educational use
because sufficient numbers of nonreleasable eagles are available for
use in educational programs. Therefore, the proposed eagle educational-
use regulations codify our policy of authorizing possession of
nonreleasable eagles only.
Fees and Permit Tenure
We propose an application processing fee of $100 for the
educational use permit. This is $25 more than the $75 fee we currently
assess for processing the Special Purpose permit and the Eagle
Exhibition permit. However, the term of the proposed educational use
permit would be five years, instead of the current three years,
reducing the average cost per year. We propose to implement a $50
amendment fee for substantive permit amendments, such as a change in
the location and housing for the birds, increasing the number or
species of birds, or adding new species to be held under the permit.
Amendments for these types of permits are generally time-consuming and
the $50 amendment fee will help us recoup a larger portion of the costs
of administering these types of permits. To prevent an undue burden on
the permittee and unnecessary workload for the Service, permits would
authorize the maximum number of birds--and species--for which the
permittee qualifies, based on (1) facilities and caging, (2) the nature
of the educational programs, and (3) the permittee's experience in
handling and caring for birds and presenting programs. Authorizing the
upper limit of birds and species will limit the need for amendments to
situations where the permittee substantially modifies his or her
facilities, experience, and/or educational programs.
Transition of Current Permittees to Permits under New Regulations
Current Special Purpose-Education permit holders and current Eagle
Exhibition permit holders need not take any special action as a result
of the new rule, if promulgated as proposed. When it is time to renew
their permits, they should apply for renewal using the Service permit
renewal form mailed to them by their Regional Permit Office. The
permits will be renewed under the new permit categories created by this
rule.
Application and Annual Reporting Requirements
This proposed rule does not specify what information an applicant
must submit to apply for an educational-use permit or to file an annual
report, other than that he or she must submit a completed application
form, including any required attachments, to apply for a permit; and
for annual reporting, the permittee must submit all the information
required on the report form. By avoiding codification of application
and reporting requirements, we can revise application and reporting
requirements without undergoing the time-consuming rulemaking process.
However, the public will have the opportunity to provide input on the
content of these forms. All forms must be approved by the Office of
Management and Budget every three years, and as part of that process,
all new forms and all changes to forms are subject to public review via
a series of notices in the Federal Register. We are not proposing any
substantive changes to the existing application and report forms at
this time. We will continue to use FWS Form 3-200-10c as the
application form for a permit to possess live birds for educational
use, FWS Form 3-200-10d to apply for possession of dead migratory bird
specimens for educational use, and FWS Form 3-200-14 for possession of
eagles and eagle specimens for educational use.
Revisions to Migratory Bird Permit Exceptions
This rule also proposes to amend regulations governing general
migratory bird permit exceptions under Sec. 21.12. Some entities (such
as municipal game farms) exempted under current regulations for
possession of specimens such as feathers, mounts, bones, nests, and
nonviable eggs would no longer be exempted from the permit requirement,
generally because those entities do not provide conservation education.
The rule clarifies what entities qualify under the remaining exemptions
and specifies that the exemption is only for purposes of public
conservation education and scientific research. Exempt institutions
would be allowed to transfer migratory bird specimens to other exempt
entities or to persons authorized by permit to possess such birds. The
intent of the language within current regulations at Sec. 21.12(b)(1)
regarding to whom exempt institutions may donate birds is unclear and
has been interpreted to limit transfer of birds only to other exempt
entities.
The rule would limit the permit exception for possession of live
birds to institutions accredited by the Association of Zoos and
Aquariums (AZA). All other individuals and entities that keep live
birds for education purposes would be required to obtain an educational
use permit within one year after the final rule becomes effective. The
permit-exempt AZA institutions would be required to comply with the
husbandry standards and several other conditions that apply to
permittees. These revisions would ensure that all entities that hold
live birds for educational use are held to the same standards. Sale and
purchase between exempt institutions and permittees and among exempt
institutions would be restricted to captive-bred migratory birds. The
rule would not allow exempt institutions to take birds from the wild;
to do that, a scientific-purpose permit must be obtained.
Entities that were previously exempted from the permit requirement
would be allowed to retain any migratory live birds and dead specimens
already in their possession on the date the rule becomes effective
without a permit. However, a permit would be required to acquire and
possess any additional live migratory bird, including progeny, or
migratory bird specimen after that date without first obtaining the
appropriate permit. Nor would such ``grandfathered'' holders be allowed
to sell or transfer live birds or dead specimens without a permit. Live
birds must be held under the husbandry standards of 21.32(b)(1)(i)
though (vii) and 21.32(b)(2).
Entities that remain exempt from the permit requirement to hold
dead specimens would be allowed to accept such specimens from members
of the public who, without a permit, pick them up. Those persons would
be exempt from the permit requirement for such one-time salvage
provided they promptly donate the specimens to a person or institution
authorized to possess the specimens by permit or permit exception.
[[Page 57417]]
We also propose new permit exemptions to allow Federal, State,
tribal, or local natural resource agencies to collect and hold birds in
the course of official duty. Finally, employees and agents of the
National Oceanic and Atmospheric Administration's National Marine
Fisheries Service, U.S. Department of Commerce, who monitor bycatch on
fishing trawlers would not need a permit to possess migratory birds
when carrying out those duties.
Minor Revisions to Rehabilitation Permit Regulations
We propose three minor amendments to regulations governing permits
for migratory bird rehabilitation at 50 CFR 21.31 because both changes
have some relation to the use of birds held for educational use. First,
we propose limited conditions under which birds undergoing
rehabilitation for release to the wild can be intermingled with birds
held under other types of permits. They could be housed with birds held
under another type of permit only for fostering purposes, and only if
the fostering bird continues to be used according to the purposes and
conditions of the permit under which it is held.
Second, we propose to allow nonreleasable birds to be kept
indefinitely under the rehabilitation permit for purposes of foster
parenting. Currently, the rehabilitation permit regulations require
that all nonreleasable birds be transferred to other types of permits,
such as educational use. However, the educational use permit authorizes
possession only of birds used for educational purposes, and in some
cases, a bird not suitable for educational use may make a good foster
parent for orphaned young or juveniles undergoing rehabilitation. This
amendment to the rehabilitation permit regulations would allow a
suitable nonreleasable bird to be held under the rehabilitation permit
indefinitely for foster parenting purposes if authorized by the
regional migratory bird permit office.
Finally, we are adding the requirement that the rehabilitator
receive approval from the permit office before transferring a
releasable wild raptor to a permitted falconer authorized to hold
eagles under his or her falconry permit.
Required Determinations
Responsibilities of Federal Agencies To Protect Migratory Birds
(Executive Order 13186). This proposed 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 (E. O. 12866). The Office of
Management and Budget (OMB) has determined that this rule is not
significant and has not reviewed this rule under Executive Order 12866
(E. O. 12866). OMB bases its determination upon the following four
criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
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 (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 proposed rule's potential effects on small
entities as required by the Regulatory Flexibility Act. We estimate the
proposed revisions to permit exemptions would require a permit to be
obtained by about 400 institutions that are currently exempt from the
permit requirement. Because approximately half of those institutions
are governmentally funded and/or operated, they would not need to pay
an application fee. Thus, if this proposal is adopted in full, we could
expect about 200 institutions to pay a permit application fee that did
not need to do so prior to this rulemaking, for a total cost of $20,000
(200 x $100 per application).
Some institutions that were previously exempt would incur costs in
upgrading facilities to the standards required of permittees. However,
we do not expect those costs to be high because many of these
institutions already have suitable facilities.
Some permittees who need substantive amendments made to their
permits would be assessed a $50 amendment fee if this rule is adopted.
We estimate approximately 100 permittees per year would pay this fee,
totaling $5,000. Fees for new permits and permit renewals would
increase by $25 (from $75 to $100). We currently receive approximately
150 new permit applications and 200 renewals for migratory bird Special
Purpose education and Eagle Exhibition permits per year. Were that to
continue, the total permit application fee revenue increase would be
$8,750 per year. However, this permit regulation would also extend the
permit term from three years to five years, reducing total renewal fees
by 40 percent ($20,000 x .4 = $8,000) per year, resulting in an overall
fee increase of approximately $750 ($8,750 - $8,000) per year if the
number of permittees were to remain unchanged. However, since this rule
would likely result in about 200 new permittees who would be subject to
application and renewal fees (as discussed above), averaging 40 new
renewals ($4,000) per year, the net cost to permittees from this
rulemaking will be $4,750 per year ($4,000 + $750). Therefore, we
certify that this action would not have a significant economic impact
on a substantial number of small entities. A final Regulatory
Flexibility Analysis is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA). This
rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule would not have an annual
effect on the economy of $100 million or more. It would not cause a
major increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions.
This rule would not have a significant adverse effect on competition,
employment, investment, productivity, innovation, or the ability of U.
S. -based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act. In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501, et seq.):
a. This rule would 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 would not impose a cost of
$100 million or more in any given year on local or State government or
private entities.
b. This rule would not produce a Federal mandate of $100 million or
greater in any year. It is not a
[[Page 57418]]
``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 would 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 the Regulatory Planning and Review section above,
this rule does not have significant Federalism effects. A Federalism
assessment is not required. Due to 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 effect on fiscal capacity, 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 meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
Paperwork Reduction Act. This proposed rule does not contain new or
revised information collection for which Office of Management and
Budget approval is required under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). Information collection associated with migratory
bird permit programs is covered by existing OMB Control No. 1018-0022,
which expires on November 30, 2010. The Service may not conduct or
sponsor, nor is a person required to respond to, a collection of
information unless it displays a current valid OMB control number.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.).
We have determined that this rule is categorically excluded under the
Department's NEPA procedures in 516 DM 8.5(A)(1) because this rule
codifies policies the Service is already implementing under a different
regulation with changes that have ``no or minor potential environmental
impact.'' The rule also is categorically excluded under 516 DM
2.3(A)(9) because it is a regulation that is legal and procedural in
nature with environmental effects that are too speculative to lend
themselves to meaningful analysis and will later be subject to the NEPA
process on a case-by-case basis. Although each permit issued under
these proposed regulations would be subject to the NEPA process, we
expect most if not all permits we issue to be categorically excluded
under 516 DM 8.5(C)(1) because they will cause no environmental
disturbance.
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, the Service did not consult with
tribal authorities because this rule will have no effect on federally-
recognized Indian tribes.
Energy Effects--Executive Order 13211. On May 18, 2001, the
President issued Executive Order 13211 on regulations that
significantly affect energy supply, distribution, and use. Executive
order 13211 requires agencies to prepare Statements of Energy Effects
when undertaking certain actions. This proposed rule is not a
significant regulatory action under Executive Order 12866, and it is
not expected to adversely affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Clarity of This Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Literature Cited
Arent, Lori, R. 2007. Raptors in Captivity: Guidelines for Care and
Management. The Raptor Center, College of Veterinary Medicine at the
University of Minnesota, St. Paul, Minnesota.
Buhl, Gail and Lisa Borgia. 2004. Wildlife in Education: A Guide
for the Care and Use of Program Animals. National Wildlife
Rehabilitators Association, St. Cloud, Minnesota.
List of Subjects in 50 CFR Part 10
Exports, Fish, Imports, Law enforcement, Plants, Transportation,
Wildlife.
List of Subjects in 50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
List of Subjects in 50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
List of Subjects in 50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
For the reasons set forth in this preamble, we propose to amend
title 50, chapter I, subchapter B of the CFR as follows:
PART 10 - GENERAL PROVISIONS
1. The authority citation for part 10 continues to read as follows:
Authority: 18 U.S.C. 42; 16 U.S.C. 703-712; 16 U.S.C. 668a-d; 19
U.S.C. 1202; 16 U.S.C. 1531-1544; 16 U.S.C. 1361-1384, 1401-1407; 16
U.S.C. 742a-742j-1; 16 U.S.C. 3371-3378.
2. Amend Sec. 10.12 by revising the definition of ``Public'' as
set forth below:
Sec. 10.12 Definitions.
* * * * *
Public as used in referring to museums, zoological parks, and
scientific or educational institutions, refers to those that are open
to the general public and are either established, maintained, and
operated as a governmental service or are privately endowed and
organized but not operated for profit. This definition does not apply
to the term ``public'' as used in migratory bird and eagle permit
regulations. With reference to migratory bird and eagle permits, see
definitions under Sec. 21.3 and Sec. 22.3 of this subchapter.
* * * * *
PART 13 - GENERAL PERMIT PROCEDURES
3. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
[[Page 57419]]
4. Amend the table in Sec. 13.11(d)(4) as follows:
a.Under the heading ``Migratory Bird Treaty Act,'' remove the entry
for ``Migratory Bird Special Purpose/Education;''
b.Under the heading ``Migratory Bird Treaty Act,'' add an entry for
``Educational Use'' immediately following the entry for ``Migratory
Bird Rehabilitation'' to read as set forth below;
c.Under the heading ``Bald and Golden Eagle Protection Act,''
remove the entries for ``Eagle Scientific Collecting'' and ``Eagle
Exhibition'';
d.Under the heading ``Bald and Golden Eagle Protection Act,'' add
an entry for ``Eagle Scientific Purpose'' as the first entry to read as
set forth below; and
e.Under the heading ``Bald and Golden Eagle Protection Act,'' add
an entry for ``Eagle Educational Use'' immediately following the entry
for ``Golden Eagle Nest Take'' to read as set forth below.
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) User fees. * * *
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Type of Permit CFR Citation Fee Amendment Fee
----------------------------------------------------------------------------------------------------------------
Migratory Bird Treaty Act
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Educational Use 50 CFR 21 100 50
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Eagle Scientific Purpose 50 CFR 22 100 50
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Eagle Educational Use 50 CFR 22 100 50
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
5. Amend the table in Sec. 13.12(b) as follows:
a. Add one entry in numerical order by section number under
``Migratory Bird permits'' for ``Educational use'' to read as follows;
b. Remove the entry for ``Scientific or exhibition'' under ``Eagle
permits;''
c. Add two entries in numerical order by section number under
``Eagle permits'' for ``Eagle scientific purpose'' and ``Eagle
educational use'' to read as set forth below.
Sec. 13.12 General information requirements on applications for
permits.
* * * * *
(b) * * *
------------------------------------------------------------------------
Type of permit Section
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Migratory bird permits:
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Educational use 21. 32
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Eagle permits:
------------------------------------------------------------------------
Eagle scientific purpose 22.21
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Eagle educational use 22.29
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
PART 21--MIGRATORY BIRD PERMITS
6. 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.
Subpart A--INTRODUCTION
7. Amend Sec. 21.2 by revising paragraph (b) to read as follows:
Sec. 21.2 Scope of regulations.
* * * * *
(b) This part, except for Sec. 21.12(a), (b)(3), and (c) (general
permit exceptions); Sec. 21.22 (banding or marking); Sec. 21.29
(Federal falconry standards); Sec. 21.31 (rehabilitation); and Sec.
21.32 (educational use), 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.
* * * * *
8. Amend Sec. 21.3 by revising the introductory text and adding
the definitions ``Nonreleasable bird'', ``Open to the general public'',
``Public institution'', ``Public museum'', and ``Public zoological
park'' in alphabetical order to read as follows:
Sec. 21.3 Definitions.
The following definitions are in addition to those contained in
part 10 of this chapter, and, unless the context of a section provides
otherwise, apply within this part:
* * * * *
Nonreleasable bird means a migratory bird that has sustained
injuries that will likely prevent it from surviving in the wild even
after medical treatment and/or rehabilitation, or a migratory bird that
has been imprinted or habituated to human presence and has lost
instincts necessary to survive in the wild.
Open to the general public means available to the general public
and not restricted to any individual or set of individuals, whether or
not a fee is charged.
* * * * *
Public institution means a public museum; public zoological park;
or a facility that is open to the general public, provides education
through exhibits or regular programs, and is maintained and/or operated
by a Federal, State, tribal, or local government agency, such as a
State
[[Page 57420]]
university, municipal zoo, or county-run nature center.
Public museum means a facility accredited by the American
Association of Museums that houses collections of objects and artifacts
of cultural or scientific interest for purposes of scientific research
or public exhibition, and which is open to the general public at least
400 hours per year on a schedule of regular, publicized hours.
Public zoological park means a facility that is either accredited
or certified as a Related Facility by the Association of Zoos and
Aquariums. The facility must contain permanent collections of live
animals, and must either be open to the general public on a regular
basis at least 400 hours per year, or must conduct at least 12
educational programs each year about ecology and wildlife conservation
that are open to the general public.
* * * * *
Subpart B--General Requirements and Exceptions
9. Amend Sec. 21.12 as follows:
a. By revising the introductory text and paragraph (a), the
introductory text of paragraph (b), and paragraph (b)(1) as set forth
below;
b. By redesignating paragraph (b)(2) as paragraph (b)(3);
c. By adding a new paragraph (b)(2) to read as set forth below; and
d. By adding a new paragraph (e) to read as set forth below.
Sec. 21.12 General exceptions to permit requirements.
The following exceptions to the permit requirements of Sec. 21.11
are authorized:
(a) Law Enforcement personnel of the Department of the Interior
(DOI), tribes, and States: If authorized to enforce the provisions of
the Migratory Bird Treaty Act, DOI employees and commissioned law
enforcement officers of State agencies (including the District of
Columbia, and the territories of the United States) and tribal
agencies, may, without a permit, take or otherwise acquire, hold in
custody, transport, or dispose of migratory birds (alive or dead,
including parts, nests, and eggs) as necessary in performing official
duties.
(b) Employees and agents of Federal, State, tribal, and local
agencies:
(1) Any employee or agent of the Service, any other Federal land
management agency, the U.S. Geological Survey, the National Marine
Fisheries Service, or a State, tribal, or local natural resource
agency, who is designated by his or her agency for such purposes may,
in the course of official duties, take and possess migratory birds from
the wild without a permit if such action is necessary to aid sick,
injured, or orphaned birds; dispose of dead birds or eggs; or salvage
and possess bird specimens, parts, nests, or eggs for scientific
purposes. This exemption to salvage migratory birds does not apply to
carcasses for which there is reasonable evidence to indicate the bird
was killed as the result of criminal activity, including, but not
limited to, unauthorized shooting, electrocution, or collision with
wind turbines.
(2) Any person on a vessel who provides observer services required
by the National Marine Fisheries Service (NMFS) under authority of the
Magnuson-Stevens Fishery Conservation and Management Act of 1976 (16
U.S.C. 1801 et seq.); the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361 et seq.); the Atlantic Tunas Convention Act of 1975 (ATCA;
16 U.S.C. 971 et seq.); the South Pacific Tuna Act of 1988 (16 U.S.C.
973 et seq.); and/or the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.), and who is either employed by NMFS, employed by a NMFS-
approved observer service provider, or certified by NMFS and employed
directly by a fishery participant, may, without a permit, possess and
transport dead migratory birds or parts found during the performance of
their official duties as observers, including the proper disposition of
such birds or parts, provided that:
(i) Possession and transportation of such migratory birds or parts
is for identification purposes or disposition with the Service or NMFS;
and
(ii) The observer submits species samples and identification along
with any other required data to the appropriate NMFS observer program.
* * * * *
(e) Public and educational institutions:
(1) Public institutions, and accredited public and private schools
(elementary through postgraduate) may possess nonliving migratory bird
specimens, except those of bald eagles and golden eagles, including
nonviable eggs, parts, and nests, for scientific or conservation
educational purposes without a permit. Employees or agents of such
institutions and schools may salvage nonliving migratory bird
specimens, except bald eagles and golden eagles, provided the specimens
will be used for the conservation education purposes of the institution
or school, and provided that:
(i) The institutions and schools dispose of and acquire such
specimens, by donation only, to and from one another; to and from
Federal, State, or tribal officials authorized to place such specimens;
and to and from holders of valid permits authorizing possession of
them.
(ii) The institutions may acquire nonliving migratory bird
specimens, except bald eagles and golden eagles, from persons who do
not have permits to collect or possess the specimens but who salvaged
them. For such one-time salvage activity, the individual will be exempt
from the permit requirement for collection and possession, provided the
specimen is promptly donated to an exempt or permitted entity for
scientific or educational purposes.
(iii) The institutions keep accurate and complete records of all
migratory bird specimens in their possession and their source,
including the name and address of all donors and transferees, for 5
calendar years following the end of the calendar year covered by the
records.
(2) Accredited institutional members of the American Zoo and
Aquarium Association do not need a permit to possess live,
nonreleasable or captive-bred migratory birds, including captive-bred
eggs, for use in education, research, or propagation. Accredited AZA
institutions may acquire such birds or eggs from or transfer such birds
or eggs to other accredited institutional members of the American Zoo
and Aquarium Association (AZA) by donation, sale, purchase, or barter
solely for use in education, research, or propagation. Accredited AZA
institutions may, by donation only, transfer birds to Federal and State
officials authorized to place such birds, or anyone with a valid
Federal permit to possess such birds. All birds possessed under this
permit exemption must be housed and cared for in accordance with the
husbandry requirements set forth in Sec. 21.32(b) of this Subchapter.
Nothing in this section authorizes such institutions to take live
migratory birds, parts, nests, or eggs from the wild.
(3) Entities that hold live migratory birds and/or nonliving
migratory bird specimens and that were previously exempt from the
permit requirement before [insert date 30 days after the date of the
final rule's publication in the Federal Register], and which are no
longer exempt may retain any migratory birds, live or dead, already in
their possession on [insert date 30 days after the date of the final
rule's publication in the Federal Register] without a permit. Live
birds must be held under the husbandry standards of 21.32(b)(1)(i)
through (vii) and 21.32(b)(2). A permit is required to
[[Page 57421]]
acquire and possess any additional live migratory bird, including
progeny, or migratory bird specimen after that date or to sell or
otherwise transfer any lawfully possessed migratory bird without first
obtaining a permit under this part.
* * * * *
Subpart C--Specific Permit Provisions
10. Amend Sec. 21.31 as follows:
a. By revising paragraphs (a), (b)(1)(i), and (e)(1)(v) as set
forth below;
b. By adding a new sentence immediately after the first sentence of
paragraph (e)(4)(ii) as set forth below; and
c. By adding a new sentence immediately after the first sentence of
paragraph (e)(4)(v) to read as set forth below.
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, possess, or
transport a 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) * * *
(1) * * *
(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, and for over 180 days
for foster parenting purposes, with authorization from the regional
migratory bird permit office.
* * * * *
(e) * * *
(1) * * *
(v) Birds must be housed only with compatible migratory bird
species, and only with other birds held for rehabilitation purposes,
except that, for foster parenting purposes, juveniles and orphaned
birds may be housed with birds held under another type of permit,
provided that the fostering bird continues to be used according to the
purposes and conditions of the permit under which it is held.
* * * * *
(4) * * *
(ii) * * * Prior to transferring a live bird, you must submit a FWS
Form 3-202-12 to your migratory bird permit issuing office and receive
authorization for the transfer. * * *
* * * * *
(v) * * * With such approval, you may retain a nonreleasable bird
under your rehabilitation permit on a continuing basis for foster
parenting purposes.
* * * * *
11. Add a new Sec. 21.32 to subpart C to read as follows:
Sec. 21.32 Educational-use permits.
(a) Purpose and scope.
(1) The migratory bird educational-use permit authorizes possession
of migratory birds for use in public educational programs and exhibits
in which migratory bird conservation, natural history, biology, and/or
ecology is a primary component of the program or exhibit. The permit
may authorize possession of live nonreleasable or captive-bred birds,
nonliving specimens, or both. The permit may also authorize salvage of
nonliving migratory bird specimens for educational use.
(2) All live birds you hold under this permit must be nonreleasable
or captive-bred individuals of a species your permit authorizes you to
possess. You may not possess more birds than is specified on the face
of your permit.
(b) Husbandry requirements for keeping live birds for educational
use.
(1) Caging requirements.
(i) Cages must allow sufficient movement to accommodate feeding,
roosting, and maintenance behaviors without harm to the bird or damage
to its feathers. The approximate cage size will vary with the size of
your bird, whether it is flighted (capable of flying) or nonflighted
(incapable of flying), the number of birds occupying the cage, and the
traits of the particular species.
(ii) The design of your caging must take into account the natural
history of the species you are housing, as well as the special needs of
individual birds.
(iii) The caging must be made of a material that will not entangle
or cause injury to the type of bird that will be housed within. The
floors must not be abrasive to the birds' feet.
(iv) Cages must be secure and provide protection from predators,
domestic animals, undue noise, human disturbance, sun, wind, and
inclement weather.
(v) Cages must be well-drained and kept clean.
(vi) You must provide adequate numbers of appropriately-sized
perches for birds under your care.
(vii) You may house birds only with nonaggressive individuals of
compatible species.
(viii) Cages for all birds except raptors must approximate the
dimensions and design recommended by the National Wildlife
Rehabilitators Association's Wildlife in Education: A Guide for the
Care and Use of Program Animals (2004), except for variations that are
reasonable and necessary to accommodate particular circumstances and
are approved by your regional migratory bird permit office based on a
showing by you that the variance will not adversely affect migratory
birds.
(ix) Cages for raptors must approximate the dimensions and design
recommended by the University of Minnesota Raptor Center's Raptors in
Captivity: Guidelines for Care and Management (2007), except for
variations that are reasonable and necessary to accommodate particular
circumstances, and are approved by the regional migratory bird permit
office based on a showing by you that the variance will not adversely
affect migratory birds.
(x) Recommended cage dimensions for program raptors are shown in
the following table:
----------------------------------------------------------------------------------------------------------------
Length feet Width feet Height feet
Species (meters) (meters) (meters)
----------------------------------------------------------------------------------------------------------------
Sharp-shinned hawk Fully flighted 5 (1.5) 5 (1.5) 7 (2.1)
American kestrel................ .................. .................. .................. ..................
Merlin.......................... Nonflighted or 3 (0.9)........... 3 (0.9)........... 3 (0.9)
Boreal owl...................... tethered.
Burrowing owl...................
Eastern screech owl.............
Northern saw-whet owl...........
Pygmy owl.......................
Western screech owl.............
----------------------------------------------------------------------------------------------------------------
[[Page 57422]]
Cooper's hawk Fully flighted or 14 (4.3) 6 (1.8) 7 (2.1)
Northern goshawk................ display only .................. .................. ..................
Northern harrier................ .................. 6 (1.8)........... 6 (1.8)........... 7 (2.1)
Nonflighted or
tethered.
----------------------------------------------------------------------------------------------------------------
Broad-winged hawk Fully flighted 10 (3.0) 8 (2.4) 7 (2.1)
Mississippi kite................ .................. .................. .................. ..................
Peregrine falcon................ Nonflighted or 6 (1.8)........... 6 (1.8)........... 7 (2.1)
Prairie falcon.................. tethered.
Common barn owl.................
Long-eared owl..................
Short-eared owl.................
----------------------------------------------------------------------------------------------------------------
Ferruginous hawk Fully flighted 12 (3.6) 8 (2.4) 7 (2.1)
Harris's hawk................... .................. .................. .................. ..................
Red-shouldered hawk............. Nonflighted or 8 (2.4)........... 8 (2.4)........... 7 (2.1)
Red-tailed hawk................. tethered.
Rough-legged hawk...............
Swainson's hawk.................
Swallow-tailed kite.............
Crested caracara................
Barred owl......................
Great grey owl..................
Great horned owl................
Snowy owl.......................
----------------------------------------------------------------------------------------------------------------
Osprey Fully flighted 40 (12.2) 10 (3.0) 9 (2.7)
Bald Eagle...................... (display only) .................. .................. ..................
Golden Eagle.................... .................. 12 (3.6).......... 10 (3.0).......... 9 (2.7)
Black vulture................... Nonflighted,
Turkey vulture.................. tethered, or
fully flighted
free-lofted
program bird.
----------------------------------------------------------------------------------------------------------------
(xi) If your facilities have already been approved by the Service
on the basis of photographs and diagrams, and authorized under a Sec.
21.27 Special Purpose-Education permit or Sec. 22.21 Eagle Exhibition
permit, then they are 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 hold).
(2) Dietary requirements. You must feed birds held under this
permit a diet that imitates its natural diet as closely as possible.
This requirement includes providing the type, as well as the variety,
of foods they are likely to naturally consume in the wild. We will use
the dietary recommendations provided in the publications designated in
paragraphs (b)(1)(viii) and (b)(1)(ix) of this section to evaluate
whether birds are fed appropriately.
(c) What additional conditions apply to educational use permits? In
addition to the husbandry requirements of paragraph (b) of this section
and the conditions set forth in part 13 of this subchapter, which
govern permit renewal, amendment, transfer, suspension, revocation, and
other procedures and requirements for all permits issued by the
Service, your authorization is subject to the following additional
conditions:
(1) You must present a minimum of 12 programs that are open to the
general public each year with each bird or specimen held under the
permit; or if your facility is open to the public and the birds and/or
specimens are displayed, but not used in programs, your facility must
be open to the public at least 400 hours per year according to a
regular, publicized schedule. Live birds that have become unsuitable
for educational use due to age or infirmity may be exempted from the
12-program requirement with authorization from the migratory bird
permit issuing office.
(2) All live birds held under this permit must be nonreleasable or
captive-bred.
(3) You may transfer birds and specimens to other permittees
authorized to receive them and acquire birds and specimens from
permittees authorized to possess and transfer them, provided the number
and species of birds held by each permittee are consistent with the
authorizations provided by his or her permit, and the transfer is in
accordance with the following conditions:
(i) Prior to acquiring or transferring a live bird, you must submit
a FWS Form 3-202-12 to your migratory bird permit issuing office and
receive authorization for the transfer.
(ii) You may transfer live birds and nonliving specimens held under
your permit only by donation, except that you may purchase and sell the
following categories of live birds: captive-bred migratory raptors
marked with a seamless metal band provided by the Service; captive-bred
waterfowl marked in accordance with 50 CFR 21.13(b); and captive-bred
game birds marked in accordance with 50 CFR 21.13(b). You are
authorized to sell, purchase, or barter such birds to and from other
permittees who are authorized to purchase, sell or barter them.
(iii) You may acquire nonliving migratory bird specimens, except
eagles, from and transfer such specimens to exempt public institutions
and accredited schools, by donation only. Transfer of live eagles and
nonliving eagle specimens must be in accordance with the provisions of
50 CFR 22.29.
(4) You may not propagate birds held under this permit.
(5) You may not acquire or possess any bird that has sustained
injuries requiring amputation of a wing at the elbow (humero-ulnar
joint) or above, a leg or a foot, and/or is blind, unless:
(i) A licensed veterinarian submits a written analysis of why the
bird is not expected to experience the injuries and/or ailments that
typically occur in birds
[[Page 57423]]
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
(ii) The issuing office specifically authorizes you to possess the
bird for educational use.
(6) You must report the death or escape of any bird to your
migratory bird permit issuing office within 5 business days by
submitting a completed FWS Form 3-202-12.
(7) You may not release any live, captive-bred bird to the wild.
(8) You may donate the carcass or individual parts and feathers of
a bird that dies to persons authorized by permit or regulation to
possess them or, if your permit authorizes possession of nonliving
specimens, you may retain them for educational purposes. Specimens not
retained by you or donated must be promptly incinerated or buried.
(9) You may retain molted feathers needed for imping purposes. If
your permit authorizes possession of nonliving specimens, you may
retain additional molted feathers for educational and scientific use,
except for bald and golden eagle feathers (see 50 CFR 22.29). Except
for eagle feathers, you may donate molted feathers to persons
authorized by permit or regulation to possess such items without
authorization from the Service.
(10) You may allow photography, filming, or other such uses of the
birds held under your permit for the purpose of providing public
education about migratory bird conservation, biology, or ecology. You
may not exhibit the birds held under this permit in any manner that
implies personal use or promotion or endorsement of any product,
merchandise, goods, services, business, or organization except your own
educational activities.
(11) Whenever you exhibit the birds held under this permit, you
must include either a written or verbal statement that your possession
and exhibition of the bird is by permission of the U.S. Fish and
Wildlife Service.
(12) Your subpermittees must be at least 18 years of age and be
designated as subpermittees in your records. All staff or volunteers
who handle the birds held under your permit must be subpermittees, or
must be directly supervised by you or a subpermittee when handling the
bird(s). You are legally responsible for ensuring that your
subpermittees, staff, and volunteers adhere to the terms of your
permit.
(13) Suitable birds held under this permit may be used for foster
parenting of birds held under a rehabilitation permit, as long as the
fostering birds continue to be used for the required 12 programs per
year.
(14) If your permit authorizes salvage, you may salvage and possess
carcasses, feathers, and parts, unoccupied nests, and nonviable eggs of
migratory birds, except for bald eagles and golden eagles.
(i) You may not salvage, and should immediately report to U.S. Fish
and Wildlife Service Law Enforcement, any live or dead birds that
appear to have been poisoned, shot, or injured as the result of
criminal activity.
(ii) You may not salvage specimens on lands managed by Federal,
State, tribal or local agencies without prior written authorization
from the applicable agency, unless the agency's policies or regulations
allow salvage of specimens.
(iii) You may not salvage specimens on private property without
prior written permission or permits from the landowner or the
landowner's custodian.
(iv) If you encounter a bird with a Federal band issued by the U.S.
Geological Survey, Bird Banding Laboratory, report the band number to
1-800-327-BAND or www.reportband.gov.
(15) You must maintain records of live birds and nonliving
specimens in your possession; the dates you acquired, transferred, or
disposed of them; the programs in which they were used or, if the birds
are displayed in their daily enclosures, the days your facility was
open to the public.
(16) You must submit an annual report for the preceding calendar
year to your migratory bird permit issuing office by the date required
on your permit. You may complete FWS Form 3-202-5 or a report from a
database you maintain, provided your report contains all, and only, the
information required by FWS Form 3-202-5.
(17) Acceptance of this permit authorizes inspection of your
records and facilities in accordance with 50 CFR 13.47.
(d) Application procedures. Apply for a migratory bird educational-
use permit to the appropriate Regional Director - Attention Migratory
Bird Permit Office. You can find addresses for the appropriate Regional
Director in Sec. 2.2 of subchapter A of this chapter. Your application
package must consist of the following:
(1) A completed application, including any required attachments.
Use FWS Form 3-200-10c for live birds of species other than eagles, FWS
Form 3-200-10d for nonliving specimens of species other than eagles,
and FWS Form 3-200-14 for eagles and eagle specimens.
(2) A check or money order made payable to the ``U. S. Fish and
Wildlife Service'' in the amount of the application fee listed on the
application form and in Sec. 13.11 of this chapter.
(e) Issuance criteria.
(1) For possession of nonliving migratory bird specimens, we may
issue a permit to you if your presentations or facilities will be open
to the public and include, as a primary component, education about
migratory bird conservation, natural history, biology, and/or ecology.
(2) For possession of live migratory birds, we will consider the
criteria in paragraph (e)(1) and whether you have adequate experience
caring for and working with migratory birds and adequate facilities for
them.
(i) In evaluating an applicant's experience handling raptors and
corvids, the Service will use the criteria in the following table as
guidance. Although hands-on experience with the species for which the
applicant is applying is most valuable, hands-on experience with any
species in a category will help qualify an applicant or permittee for
other species in that category.
----------------------------------------------------------------------------------------------------------------
Species Static Display On-the-Glove Flight Demonstration
----------------------------------------------------------------------------------------------------------------
Category 1 .......................
Harris's hawk........................ 100 hours over at least 140 hours over at least 300 hours over at least
American kestrel..................... 1 year,. 1 year,. 1 year,
Eastern screech owl.................. including husbandry and including husbandry and including husbandry and
Northern saw-whet owl................ a minimum. a minimum. a
Western screech owl.................. of 20 hours of of 40 hours conducting minimum of 80 hours of
conducting. educational. educational
educational programs... programs on the glove. programs and 50 hours
of
free-flying under
supervision of an
experienced permittee.
----------------------------------------------------------------------------------------------------------------
[[Page 57424]]
Category 2
Broad-winged hawk.................... 160 hours over at least 200 hours over at least 500 hours over at least
Mississippi kite..................... 1 year,. 1 year,. 1 year,
Red-shouldered hawk.................. including husbandry and including husbandry and including husbandry and
Red-tailed hawk...................... a minimum. a minimum. a minimum
Rough-legged hawk.................... of 40 hours of educational programs of of 100 hours of
Swallow-tailed kite.................. conducting. 60 hours. educational
Barred owl........................... educational programs. conducting on the programs and 50 hours
Boreal owl........................... At least. glove. At least. of
Burrowing owl........................ half the time half the free-flying under
Common barn owl...................... requirement should. timerequirement should supervision
Great horned owl..................... be with birds in this be. of an experienced
Corvids.............................. category.. with birds in this permittee. At
category.. least half the time
requirement
should be with birds in
this
category.
----------------------------------------------------------------------------------------------------------------
Category 3 .......................
Northern harrier..................... 200 hours over at least 240 hours over at least 700 hours over at least
Swainson's hawk...................... 1 year,. 1 year,. 2 years,
Merlin............................... including husbandry and including husbandry and including husbandry and
Peregrine falcon..................... a minimum. a minimum. a minimum
Prairie falcon....................... of 60 hours of of 80 hours conducting. of 160 hours of
Great grey owl....................... conducting. educational programs on educational
Long-eared owl....................... educationalprograms. At the. programs (80 with birds
Pygmy owl............................ least. glove. At least half in
Short-eared owl...................... half the the time. programs this
Black vulture........................ timerequirement should. requirement should be category), and
Turkey vulture....................... be with birdsin this with. 50 hours of free-flying
category.. birds in this category. birds
in this category under
supervision of an
experienced
permittee.
----------------------------------------------------------------------------------------------------------------
Category 4
Osprey............................... 300 hours over at least 500 hours over at least 1000 hours over at
Bald eagle........................... 1 year,. 1 year,. least 2 years,
Cooper's hawk........................ including husbandry and including husbandry and including husbandry and
Ferruginous hawk..................... a minimum. a minimum. a minimum
Golden eagle......................... of 80 hours of of 100 hours conducting of 200 hours of
Northern goshawk..................... conducting. educational programs on educational
Sharp-shinned hawk................... educational programs. the glove. At least programs (100 hours
Crested caracara..................... At least. half. with birds
Snowy owl............................ half the time the time requirement in this category), and
requirement should. must. 50 hours
be with the particular be with the particular of free-flying the
species.. species.. particular
species under the
supervision
of an experienced
permittee.
----------------------------------------------------------------------------------------------------------------
(ii) For applications to possess migratory birds other than raptors
and corvids for static display, we will evaluate your experience based
on the Static Display criteria for Category 1 in the table in paragraph
(e)(2)(i) of this section. For applications to use such birds for
program use, we will use the recommendations of National Wildlife
Rehabilitators Association's Wildlife in Education: A Guide for the
Care and Use of Program Animals (2004) to determine the suitability of
the species for educational program use and the level of experience
required.
(iii) Your facilities must properly house the species of migratory
birds that you are applying to hold. Enclosure dimensions and design
must meet the husbandry standards set forth in paragraph (b)(1) of this
section.
(iv) We will determine the migratory bird species and the number of
birds you are authorized to hold under your permit, based on your
experience, facilities, and the nature of the educational programs you
intend to present.
(f) State and tribal authorization. If your State or tribe requires
a license or permit to hold migratory birds for education, your Federal
permit is not valid unless you possess and adhere to the terms of the
State, tribal, or territorial authorization.
(g) Permit tenure. The tenure of each educational use permit is
specified on the face of the permit, and in no case will be longer than
5 years.
PART 22 - EAGLE PERMITS
12. 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-
1544.
13. Amend Sec. 22.2 by revising the section heading and paragraph
(a)(2) to read as follows:
Sec. 22.2 To what activities does this part apply?
(a) * * *
(2) You may not transport into or out of the United States, import,
export, purchase, sell, trade, barter, or offer for purchase, sale,
trade, or barter bald eagles or golden eagles, or their parts, nests,
or eggs of these lawfully-acquired pre-act birds. However, you may
transport into or out of the United States any lawfully acquired,
nonliving bald eagle or golden eagle specimens if you acquire a permit
issued under Sec. Sec. 22.21, 22.22, or 22.29 of this part and obtain
the CITES export authorization through the procedures set forth under
Sec. Sec. 22.21, 22.22, and 22.29.
* * * * *
14. Amend Sec. 22.3 by revising the section heading and the
introductory text and by adding the definitions ``Nonreleasable
eagle'', ``Open to the general public'', ``Public museum'', ``Public
scientific society'', and ``Public zoological park'' in alphabetical
order to read as follows:
Sec. 22.3 What definitions do you need to know?
The following definitions are in addition to those contained in
part 10 of this chapter, and, unless the context of a section provides
otherwise, are used for purposes of this part.
* * * * *
Nonreleasable eagle means a bald or golden eagle that has sustained
injuries that will likely prevent it from surviving in the wild even
after medical treatment and/or rehabilitation, or a bald or golden
eagle that has been imprinted or habituated to human presence and has
[[Page 57425]]
lost instincts necessary to survive in the wild.
Open to the general public means available to the general public
and not restricted to any individual or set of individuals, whether or
not a fee is charged.
* * * * *
Public museum means a facility accredited by the American
Association of Museums that houses collections of objects and artifacts
of cultural or scientific interest for scientific research or public
exhibition, and which is open to the general public at least 400 hours
per year on a schedule of regular, publicized hours.
Public scientific society means an entity that conducts research in
the field of wildlife conservation, ecology, ornithology, or other
natural science, and makes the findings of such research available to
the public; or promotes public knowledge about science, biology,
ecology, and/or wildlife conservation and either is open to the general
public on a regular basis at least 400 hours per year or conducts at
least 12 educational programs per year that are open to the general
public.
Public zoological park means a facility that is either accredited
or certified as a Related Facility by the Association of Zoos and
Aquariums. The facility must contain permanent collections of live
animals, and must either be open to the general public on a regular
basis at least 400 hours per year, or must conduct at least 12
educational programs each year about ecology and wildlife conservation
that are open to the general public.
* * * * *
Subpart C - Eagle Permits
15. Revise Sec. 22.21 to read as follows:
Sec. 22.21 What are the requirements concerning scientific-purpose
permits?
We may, under the provisions of this section, issue a permit
authorizing the taking, possession, transportation within the United
States, or transportation into or out of the United States of lawfully
possessed bald eagles or golden eagles, or their parts, nests, or eggs
for the scientific purposes of public museums, public scientific
societies, or public zoological parks. We will not issue a permit under
this section that authorizes the transportation into or out of the
United States of any live bald or golden eagles, or any viable eggs of
these birds.
(a) How do I apply if I want a permit for scientific purposes? (1)
You must submit applications for permits to take, possess, or transport
within the United States lawfully acquired live or dead bald or golden
eagles, or their parts, nests, or eggs for scientific purposes to the
appropriate Regional Director - Attention: Migratory Bird Permit
Office. You can find addresses for the Regional Directors in 50 CFR
2.2.
(2) If you want a permit to transport into or out of the United
States any lawfully acquired dead bald or golden eagles or their parts,
nests, or nonviable eggs for scientific purposes, you must submit your
application to the Division of Management Authority. Your application
must contain all the information necessary for the issuance of a CITES
permit. You must also comply with all the requirements in part 23 of
this subchapter before international travel. Mail should be addressed
to: Division of Management Authority, U.S. Fish and Wildlife Service,
4401 N. Fairfax Drive, Room 212, Arlington, VA, 22203-1610.
(3) Your application for any permit under this section must also
contain the information required under this section, Sec. 13.12(a) of
this subchapter, and the following information:
(i) Species of eagle and number of such birds, nests, or eggs
proposed to be taken, possessed, or transported;
(ii) Specific locality in which taking is proposed, if any;
(iii) Method of taking proposed, if any;
(iv) If not taken, the source of eagles and other circumstances
surrounding the proposed acquisition or transportation;
(v) Name and address of the public museum, public scientific
societies, or public zoological park for which they are intended; and
(vi) Complete explanation and justification of request, nature of
project or study, and other appropriate explanations.
(b) What are the conditions? In addition to the general conditions
in part 13 of this subchapter B, permits to take, possess, transport
within the United States, or transport into or out of the United States
bald or golden eagles, or their parts, nests, or eggs for scientific
purposes, are also subject to the following condition: In addition to
any reporting requirement specifically noted in the permit, you must
submit a report of activities conducted under the permit to the
Regional Director - Attention: Migratory Bird Permit Office, within 30
days after the permit expires.
(c) How do we evaluate your application for a permit? We will
conduct an investigation and will issue a permit to take, possess,
transport within the United States, or transport into or out of the
United States bald or golden eagles, or their parts, nests, or eggs for
scientific purposes only when we determine that the taking, possession,
or transportation is compatible with the preservation of the bald eagle
and golden eagle. In making this determination, we will consider, among
other criteria, the following:
(1) The direct or indirect effect that issuing such permit would be
likely to have upon the wild populations of bald and golden eagles;
(2) Whether the expertise, facilities, or other resources available
to the applicant appear adequate to successfully accomplish the
objectives stated in the application;
(3) Whether the justification of the purpose for which the permit
is being requested is adequate to justify the removal of the eagle from
the wild or otherwise change its status; and
(4) Whether the applicant has demonstrated that the permit is being
requested for bona fide scientific purposes of a public museum, public
scientific society, or public zoological park.
(d) Tenure of permits. The tenure of permits to take bald or golden
eagles for scientific purposes will be that shown on the face of the
permit.
16. Add a new Sec. 22.29 to subpart C to read as follows:
Sec. 22.29 Permits for possession and educational use of eagles.
(a) Purpose and scope. The eagle educational-use permit authorizes
possession of nonreleasable bald eagles and/or golden eagles for use in
public educational programs and exhibits in which eagle conservation,
natural history, biology, or ecology is a primary component of the
program or exhibit.
(b) Conditions and provisions. Except as provided in this part and
in Sec. 21.32 of this subchapter (migratory bird educational-use
permits), all of the provisions of Sec. 21.32 apply to eagle
educational-use permits.
(1) We may issue eagle educational-use permits only to public
museums, public scientific societies, and public zoological parks.
Permittees must either have facilities that are open to the general
public according to a schedule of regular, publicized hours amounting
to at least 400 hours per year, or must conduct at least 12 educational
programs per year that are open to the general public or presented at
an accredited school.
(2) You may not allow physical contact between a live eagle held
under this permit and the public.
(3) Live eagles possessed under this permit must be nonreleasable.
(4) Except for specimens that are in poor condition or are
otherwise deemed
[[Page 57426]]
unacceptable for distribution by the National Eagle Repository, or
those that the National Eagle Repository does not typically distribute
to Native Americans for religious ceremonial purposes (such as some
skeletal parts), all nonliving eagle specimens possessed under this
permit must have been lawfully acquired before March 30, 1994. The
Regional Director for the Region where the applicant resides may
authorize exceptions on a case-by-case basis for important resource
needs with compelling justification.
(5) Prior to acquiring or transferring any eagle or specimen
thereof, you must submit a FWS Form 3-202-12 to your migratory bird
permit issuing office and receive authorization from the office for the
transfer.
(6) To transport nonliving eagle specimens out of or into the
United States for educational purposes, you must submit your
application for a transport permit to the Division of Management
Authority. Your application must contain all the information necessary
for the issuance of a CITES permit. You must also comply with all the
requirements in part 23 of this subchapter before undertaking
international travel. Mail should be addressed to the Division of
Management Authority, U.S. Fish and Wildlife Service, 4401 North
Fairfax Drive, Room 212, Arlington, VA 22203-1610.
(i) Eagle specimens may be transported out of or into the United
States on a temporary basis only. You must return the permitted
specimens to the originating country within the timeframe specified on
the face of the permit, not to exceed 3 years.
(ii) We will not issue a permit under this section that authorizes
the transportation out of or into the United States of any live bald
eagle or golden eagle or viable egg of these species.
(7) You must send all bald eagle and golden eagle carcasses of
eagles that die in your possession, and all molted eagle primary and
secondary feathers and retrices (tail feathers) not needed for imping
(replacing a damaged feather with a molted feather) to the U. S. Fish
and Wildlife Service, National Eagle Repository, Building 128, Rocky
Mountain Arsenal, Commerce City, CO 80022. You can contact the
Repository at 303-287-2110.
(8) You must submit an annual report for the preceding calendar
year to your migratory bird permit issuing office by the date specified
on your permit. You may complete FWS Form 3-202-13 or a report from a
database you maintain, provided your report contains all, and only, the
information required by FWS Form 3-202-13.
Dated: July 1, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-23342 Filed 9-20-10; 8:45 am]
BILLING CODE 4310-55-S