[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39368-39369]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16880]



Fish and Wildlife Service

50 CFR Part 21

[Docket Number FWS-R9-MB-2009-0045; 91200-1231-9BPP]
RIN 1018-AW75

Migratory Bird Permits; Abatement Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: We are considering promulgating migratory bird permit 
regulations for a permit to use raptors (birds of prey) in abatement 
activities. Abatement means the use of trained raptors to flush, scare 
(haze), or take birds or other wildlife to mitigate damage or other 
problems, including risks to human health and safety. We have permitted 
this activity under special purpose permits since 2007 pursuant to a 
migratory bird permit policy memorandum. We now intend to prepare a 
specific permit regulation to authorize this activity. We seek 
information and suggestions from the public to help us formulate any 
proposed regulation.

DATES: We must receive any comments or suggestions by October 4, 2011.

ADDRESSES: You may only submit comments or suggestions by the following 
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. We will not post 
duplicate comments from any entity, nor will they be put into our 
administrative record for this issue.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attention FWS-R9-MB-2009-0045; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. 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: Susan Lawrence at 703-358-2016.


Public Comments

    We request comments and suggestions on this topic from the public, 
other concerned governmental agencies, the scientific community, 
industry, or any other interested parties. You may submit your comments 
and materials concerning this issue by one of the methods listed in the 
ADDRESSES section. We will not consider comments sent by e-mail or fax 
or to an address not listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we use in preparing a proposed rule, will be available 
for public inspection at http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service 


    In response to public interest in the use of trained raptors to 
haze (scare) depredating and other problem birds from airports and 
agricultural crops, we drafted policy to establish a migratory bird 
abatement permit. On January 12, 2007, we published a Federal Register 
notice (72 FR 1556-1557) containing draft permit conditions for 
abatement permits for public comment. On December 10, 2007, we 
published a Federal Register notice (72 FR 69705-69706) announcing 
final permit conditions. This was accompanied by Migratory Bird Permit 
Memorandum Number 5, Abatement Activities Using Raptors, issued August 
22, 2007, available at http://www.fws.gov/migratorybirds/mbpermits/Memorandums/Abatement Activities Using Raptors.pdf.
    The policy memorandum and conditions govern current administration 
of Federal Migratory Bird Special Purpose Abatement permits (Federal 
abatement permit). Applicants for a Federal abatement permit complete 
and submit Service application form 3-200-79 (http://www.fws.gov/forms/3-200-79.pdf) to their Regional Migratory Bird Permit Office. The 
permit provides the public with a nonlethal management tool to mitigate 
problems caused by birds and other wildlife. The use of raptors in 
abatement continues to expand, and we intend to develop a specific 
permit regulation to govern the activity, rather than continue to 
administer the permits under Special Purpose permit authority (50 CFR 
21.27) and Migratory Bird Permit Memorandum Number 5.
    A Federal abatement permit authorizes the use of trained raptors 
protected under the Migratory Bird Treaty Act (MBTA) to abate problems 
caused by migratory birds or other wildlife. Under the current policy, 
an individual must be a Master Falconer in good standing under the 
Federal falconry regulations (50 CFR 21.29) to

[[Page 39369]]

qualify for an abatement permit. A General or Apprentice Falconer may 
conduct abatement activities under the permit holder's Federal 
abatement permit if the permit holder designates them as a 
subpermittee. Only raptors that belong to the abatement permit holder 
may be used under his or her abatement permit.
    Raptors used under a Federal abatement permit must be captive-bred 
and banded with a Service-issued seamless band. Any MBTA-protected 
raptor species (including legally held threatened or endangered 
species) may be used for abatement, except for golden eagles and bald 
eagles. There is currently no limit to the number of raptors an 
abatement permit holder may hold under a Federal abatement permit 
provided that they are properly cared for and each raptor is used for 
abatement activities. Facilities and equipment must meet standards 
described in 50 CFR 21.29.
    A Federal abatement permit holder may use captive-bred raptors held 
under his or her migratory bird master falconry permit for abatement 
activities without transferring them to his or her abatement permit, 
provided the applicable State falconry permitting authority allows 
this. The falconry bird used must be a species authorized for use per 
the conditions of the Federal abatement permit. Only the permit holder 
may use his or her falconry birds for abatement activities. Raptors 
held under a Federal abatement permit may not be used for falconry 
unless they are transferred to a falconry permit.
    Abatement permit holders must submit a completed 3-186A form 
(Migratory Bird Acquisition and Disposition Report) to the issuing 
Migratory Bird Permit Office for each raptor he or she acquires or 
disposes of under the permit, but they have no other reporting 
requirements. Among other things, we solicit suggestions as to whether 
reporting will have value, and what level of reporting should be 
    A Federal abatement permit, by itself, does not authorize the 
general killing, injuring, or take of migratory birds or other 
wildlife. Any take of protected migratory birds by an abatement permit 
holder must be authorized by a Federal depredation order or depredation 
permit. Any harassment, disturbance, or take of bald eagles, golden 
eagles, or endangered or threatened species by an abatement permit 
holder must be authorized by the applicable Federal permit. Abatement 
activities must also be in accordance with any other applicable 
Federal, State, or Tribal law.
    However, no additional Federal permit is required to take species 
that are not protected under the MBTA or any other applicable Federal 
law. In addition, no Federal permit is required to conduct abatement 
activities directed at protected migratory birds that do not amount to 
a take. We do not consider flushing, scaring, or hazing to meet the 
definition of take under the MBTA.
    Possession and use for abatement of exotic raptor species that are 
not on the list of MBTA-protected species at 50 CFR 10.13, such as 
Barbary falcon, Lanner falcon, and Saker falcon, is not regulated under 
the MBTA and is outside the scope of this notice. Hybrid raptors of 
MBTA-protected species would still be subject to this proposed permit 
regulation. Though an abatement permit would not be required for use of 
such species in abatement activities, any resulting take of protected 
migratory birds or other protected wildlife must still be authorized 
under the applicable Federal, State, or Tribal law or regulation.
    A Federal abatement permit will allow the permittee to conduct 
abatement at the locations identified and under the conditions listed 
on his or her abatement permit. A State abatement permit also may be 
required of an abatement practitioner.
    We solicit comments and suggestions on any aspect of the use of 
trained MBTA-protected raptors for abatement activities and potential 
regulations to govern Federal permitting. We particularly solicit 
comments on the topics listed below. Explaining the reasons and 
rationale for your comments where appropriate will help as we consider 
them in the preparation of a proposed rule.
    (1) Qualifications and experience necessary to qualify for a 
Federal abatement permit.
    (2) Limits on the species that should be authorized for use in 
abatement activities.
    (3) Limits on the numbers of raptors that should be authorized for 
use in abatement activities.
    (4) Qualifications and experience of subpermittees (both those 
authorized to fly the permit holder's raptors and those allowed to care 
for birds).
    (5) Caging requirements for birds, while traveling, being 
transported and held in ``temporary'' caging for extended periods of 
time, i.e., multiple birds held in a trailer while conducting seasonal 
abatement activities at multiple locations.
    (6) The use of falconry birds held by subpermittees for abatement.
    (7) Any other considerations relating to subpermittees conducting 
abatement activities under a permit holder's permit, including their 
business relationship to the permit holder. For example, should 
falconers located elsewhere in the United States be allowed to conduct 
abatement activities in their own locale as subpermittees under a 
permit holder's abatement permit? Why or why not?
    (8) Comments on what has worked well under existing permits and 
what has not worked well.
    (9) Report information that should be required from a permit 
holder, if any.
    (10) Other conditions that should apply to these permits.
    (11) Examples of situations where raptors are used for abatement 
and information or documentation of success or lack of success in 
accomplishing abatement objectives.

    Authority: The authorities for this notice are the Migratory 
Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703-712); Pub. L. 95-616, 
92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-108, 113 Stat. 1491, 
and Note Following 16 U.S.C. 703.

    Dated: June 27, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-16880 Filed 7-5-11; 8:45 am]