[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 50
Wildlife and Fisheries
________________________
Parts 18 to 199
Revised as of October 1, 2020
Containing a codification of documents of general
applicability and future effect
As of October 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter I--United States Fish and Wildlife Service,
Department of the Interior (Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 815
Alphabetical List of Agencies Appearing in the CFR...... 835
List of CFR Sections Affected........................... 845
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 50 CFR 18.1 refers
to title 50, part 18,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
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the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2020.
[[Page ix]]
THIS TITLE
Title 50--Wildlife and Fisheries is composed of thirteen volumes.
The parts in these volumes are arranged in the following order: Parts 1-
16; part 17 (17.1 to 17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to
(e)), part 17 (17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part
17 (17.99(a) to (h)), part 17 (17.99(i) to end of part 17), parts 18-
199, parts 200-227, parts 228-599, parts 600-659, and part 660 to end.
The first nine volumes consist of parts 1-16, part 17 (17.1 to
17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to (e)), part 17
(17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 (17.99(a)
to 17.99(h)), part 17 (17.99(i) to end of part 17), and parts 18-199 and
contain the current regulations issued under chapter I--United States
Fish and Wildlife Service, Department of the Interior. The tenth volume
(parts 200-227) contains the current regulations issued under chapter
II--National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce. The eleventh volume (parts 228-
599) contains the remaining current regulations issued under chapter
II--National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce; and the current regulations
issued under chapter III--International Fishing and Related Activities;
chapter IV--Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee regulations; and chapter V--
Marine Mammal Commission. The twelfth and thirteenth volumes (parts 600-
659 and part 660 to end) contain the current regulations issued under
chapter VI--Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of October 1, 2020.
Alphabetical listings of endangered and threatened wildlife and
plants appear in Sec. Sec. 17.11 and 17.12.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 18 to 199)
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Part
chapter i--United States Fish and Wildlife Service,
Department of the Interior (Continued).................... 18
[[Page 3]]
CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR (CONTINUED)
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SUBCHAPTER B--TAKING, POSSESSION, TRANSPORTATION, SALE, PURCHASE,
BARTER, EXPORTATION, AND IMPORTATION OF WILDLIFE AND PLANTS (CONTINUED)
Part Page
18 Marine mammals.............................. 5
19 Airborne hunting............................ 47
20 Migratory bird hunting...................... 48
21 Migratory bird permits...................... 70
22 Eagle permits............................... 136
23 Convention on International Trade in
Endangered Species of Wild Fauna and
Flora (CITES)........................... 154
24 Importation and exportation of plants....... 226
SUBCHAPTER C--THE NATIONAL WILDLIFE REFUGE SYSTEM
25 Administrative provisions................... 229
26 Public entry and use........................ 237
27 Prohibited acts............................. 259
28 Enforcement, penalty, and procedural
requirements for violations of
Subchapter C............................ 266
29 Land use management......................... 268
30 Range and feral animal management........... 297
31 Wildlife species management................. 297
32 Hunting and fishing......................... 298
34 Refuge revenue sharing with counties........ 527
35 Wilderness preservation and management...... 531
36 Alaska National Wildlife Refuges............ 534
37 Geological and geophysical exploration of
the coastal plain, Arctic National
Wildlife Refuge, Alaska................. 564
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38 Midway Atoll National Wildlife Refuge....... 586
SUBCHAPTER D [RESERVED]
SUBCHAPTER E--MANAGEMENT OF FISHERIES CONSERVATION AREAS
70 National fish hatcheries.................... 590
71 Hunting and sport fishing on national fish
hatcheries.............................. 591
SUBCHAPTER F--FINANCIAL ASSISTANCE--WILDLIFE AND SPORT FISH RESTORATION
PROGRAM
80 Administrative requirements, Pittman-
Robertson Wildlife Restoration and
Dingell--Johnson Sport Fish Restoration
Acts.................................... 596
81 Conservation of endangered and threatened
species of fish, wildlife, and plants--
cooperation with the States............. 623
82 Administrative procedures for grants-in-aid
(Marine Mammal Protection Act of 1972).. 627
83 [Reserved]
84 National Coastal Wetlands Conservation Grant
Program................................. 631
85 Clean Vessel Act Grant Program.............. 646
86 Boating Infrastructure Grant Program........ 655
SUBCHAPTER G--MISCELLANEOUS PROVISIONS
90 Feeding depredating migratory waterfowl..... 678
91 Migratory bird hunting and conservation
stamp contest........................... 680
92 Migratory bird subsistence harvest in Alaska 685
SUBCHAPTER H--NATIONAL WILDLIFE MONUMENTS
96-99 [Reserved]
100 Subsistence management regulations for
public lands in Alaska.................. 699
101-199 [Reserved]
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SUBCHAPTER B_TAKING, POSSESSION, TRANSPORTATION, SALE, PURCHASE, BARTER,
EXPORTATION, AND IMPORTATION OF WILDLIFE AND PLANTS (CONTINUED)
PART 18_MARINE MAMMALS--Table of Contents
Subpart A_Introduction
Sec.
18.1 Purpose of regulations.
18.2 Scope of regulations.
18.3 Definitions.
18.4 Information collection requirements.
Subpart B_Prohibitions
18.11 Prohibited taking.
18.12 Prohibited importation.
18.13 Prohibited uses, possession, transportation, and sales.
18.14 Marine mammals taken before the Act.
Subpart C_General Exceptions
18.21 Actions permitted by international treaty, convention, or
agreement.
18.22 Taking by Federal, State or local government officials.
18.23 Native exemptions.
18.24 Taking incidental to commercial fishing operations.
18.25 Exempted marine mammals or marine mammals products.
18.26 Collection of certain dead marine mammal parts.
18.27 Regulations governing small takes of marine mammals incidental to
specified activities.
Subpart D_Special Exceptions
18.30 Polar bear sport-hunted trophy import permits.
18.31 Scientific research permits and public display permits.
18.32 Waiver of the moratorium.
18.33 Procedures for issuance of permits and modification, suspension,
or revocation thereof.
18.34 Guidelines for use in safely deterring polar bears.
Subpart E--Depleted Species or Stocks [Reserved]
Subpart F--Transfer of Management Authority to States [Note]
Subpart G_Notice and Hearing on Section 103 Regulations
18.70 Basis and purpose.
18.71 Definitions.
18.72 Scope of regulations.
18.73 Burden of proof.
18.74 Notice of hearing.
18.75 Notification by interested persons.
18.76 Presiding officer.
18.77 Direct testimony submitted as written documents.
18.78 Mailing address.
18.79 Inspection and copying of documents.
18.80 Ex parte communications.
18.81 Prehearing conference.
18.82 Prehearing order.
18.83 Determination to cancel the hearing.
18.84 Rebuttal testimony and new issues of fact in prehearing order.
18.85 Waiver of right to participate.
18.86 Conduct of the hearing.
18.87 Direct testimony.
18.88 Cross-examination.
18.89 Oral and written arguments.
18.90 Recommended decision, certification of the transcript and
submission of comments on the recommended decision.
18.91 Director's decision.
Subpart H_Waiver of Moratorium on Taking and Importation of Individual
Marine Mammal Species
18.92 Purpose of regulations.
18.93 Scope of regulations.
18.94 Pacific walrus (Alaska).
Subpart I [Reserved]
Subpart J_Nonlethal Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development, Production and Other Substantially Similar
Activities in the Beaufort Sea and Adjacent Northern Coast of Alaska
18.121 Specified activities covered by this subpart.
18.122 Specified geographic region where this subpart applies.
18.123 Dates this subpart is in effect.
18.124 Procedure to obtain a Letter of Authorization (LOA).
18.125 How the Service will evaluate a request for a Letter of
Authorization (LOA).
18.126 Authorized take allowed under a Letter of Authorization (LOA)
18.127 Prohibited take under a Letter of Authorization (LOA).
18.128 Mitigation, monitoring, and reporting requirements.
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18.129 Information collection requirements.
Subpart K_Nonlethal Taking of Marine Mammals Incidental to Oil and Gas
Activities in Cook Inlet, Alaska
18.130 Specified activities covered by this subpart.
18.131 Specified geographic region where this subpart applies.
18.132 Dates this subpart is in effect.
18.133 Authorized take allowed under a Letter of Authorization (LOA).
18.134 Procedure to obtain a Letter of Authorization (LOA).
18.135 How the Service will evaluate a request for a Letter of
Authorization (LOA).
18.136 Prohibited take under a Letter of Authorization (LOA).
18.137 Mitigation.
18.138 Monitoring.
18.139 Reporting requirements.
18.140 Measures to reduce impacts to subsistence users.
18.141 Information collection requirements.
Authority: 16 U.S.C. 1361 et seq.
Source: 39 FR 7262, Feb. 25, 1974, unless otherwise noted.
Subpart A_Introduction
Sec.18.1 Purpose of regulations.
The regulations contained in this part implement the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361-1407), which among other things,
restricts the taking, possession, transportation, selling, offering for
sale, and importing of marine mammals.
Sec.18.2 Scope of regulations.
(a) This part 18 applies solely to marine mammals and marine mammal
products as defined in Sec.18.3. For regulations under the Act with
respect to cetacea (whales and porpoises), pinnipedia, other than walrus
(seals and sea lions), see 50 CFR part 216.
(b) The provisions in this part are in addition to, and are not in
lieu of, other regulations of this subchapter B which may require a
permit or prescribe additional restrictions or conditions for the
importation, exportation, and interstate transportation of wildlife.
(See also part 13 of this subchapter.)
Sec.18.3 Definitions.
In addition to definitions contained in section 3 of the Act and in
part 10 of this subchapter, and unless the context requires otherwise,
in this part 18:
Act means the Marine Mammal Protection Act of 1972, 86 Stat. 1027,
16 U.S.C. 1361-1407; Pub. L. 92-522.
Alaskan Native means a person defined in the Alaska Native Claims
Settlement Act (43 U.S.C. section 1603(b) (85 Stat. 588)) as a citizen
of the United States who is of one-fourth degree or more Alaska Indian
(including Tsimshian Indians enrolled or not enrolled in the Metlaktla
Indian Community), Eskimo, or Aleut blood, or combination thereof. The
term includes any Native, as so defined, either or both of whose
adoptive parents are not Natives. It also includes, in the absence of
proof of a minimum blood quantum, any citizen of the United States who
is regarded as an Alaska Native by the Native village or town of which
he claims to be a member and whose father or mother is (or, if deceased,
was) regarded as Native by any Native village or Native town. Any
citizen enrolled by the Secretary pursuant to section 5 of the Alaska
Native Claims Settlement Act shall be conclusively presumed to be an
Alaskan Native for purposes of this part.
Authentic native articles of handicrafts and clothing means items
made by an Indian, Aleut, or Eskimo that (a) are composed wholly or in
some significant respect of natural materials and (b) are significantly
altered from their natural form and are produced, decorated, or
fashioned in the exercise of traditional native handicrafts without the
use of pantographs, multiple carvers, or similar mass-copying devices.
Improved methods of production utilizing modern implements such as
sewing machines or modern techniques at a tannery registered pursuant to
Sec.18.23(c) may be used so long as no large-scale mass-production
industry results. Traditional native handicrafts include, but are not
limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. The formation of traditional native groups, such
as cooperatives, is permitted so long as no large-scale mass production
results.
[[Page 7]]
Commercial fishing operation means the lawful harvesting of fish
from the marine environment for profit as part of an on-going business
enterprise. Such term shall not include sport fishing activities whether
or not carried out by charter boat or otherwise, and whether or not the
fish so caught are subsequently sold.
Endangered species means a species of marine mammal listed as
``endangered'' pursuant to the Endangered Species Act of 1973, 87 Stat.
884, Pub. L. 93-205 (see part 17 of this subchapter).
Incidental catch means the taking of a marine mammal (a) because it
is directly interfering with commercial fishing operations, or (b) as a
consequence of the steps used to secure the fish in connection with
commercial fishing operations: Provided, however, That a marine mammal
so taken must immediately be returned to the sea with a minimum of
injury; and Provided, further, That the taking of a marine mammal which
otherwise meets the requirements of this definition shall not be
considered as incidental catch of that mammal if it is used subsequently
to assist in commercial fishing operations.
Marine mammal means any specimen of the following species, whether
alive or dead, and any part thereof, including but not limited to, any
raw, dressed, or dyed fur or skin:
------------------------------------------------------------------------
Scientific name Common name Date listed
------------------------------------------------------------------------
Ursus maritimus................. Polar bear........ Dec. 21, 1972.
Enhydra lutris.................. Sea otter......... Do.
Odobenus rosmarus............... Walrus............ Do.
Dugong dugon.................... Dugong............ Do.
Trichechus manatus.............. West Indian Do.
manatee.
Trichechus inunguis............. Amazonian manatee. Do.
Trichechus senegalensis......... West African Do.
manatee.
Lutra felina.................... Marine otter...... Mar. 29, 1978.
------------------------------------------------------------------------
Note: Common names given may be at variance with local usage.
Native village or town means any community, association, tribe,
band, clan, or group.
Pregnant means pregnant near term.
Subsistence means the use by Alaskan Natives of marine mammals taken
by Alaskan Natives for food, clothing, shelter, heating, transportation,
and other uses necessary to maintain the life of the taker or for those
who depend upon the taker to provide them with such subsistence.
Take means to harass, hunt, capture, collect, or kill, or attempt to
harass, hunt, capture, collect, or kill any marine mammal, including,
without limitation, any of the following: The collection of dead animals
or parts thereof; the restraint or detention of a marine mammal, no
matter how temporary; tagging a marine mammal; or the negligent or
intentional operation of an aircraft or vessel, or the doing of any
other negligent or intentional act which results in the disturbing or
molesting of a marine mammal.
Threatened species means a species of marine mammal listed as
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat.
884, Pub. L. 93-205.
Wasteful manner means any taking or method of taking which is likely
to result in the killing or injuring of marine mammals beyond those
needed for subsistence purposes or for the making of authentic native
articles of handicrafts and clothing or which results in the waste of a
substantial portion of the marine mammal and includes without limitation
the employment of a method of taking which is not likely to assure the
capture or killing of a marine mammal, or which is not immediately
followed by a reasonable effort to retrieve the marine mammal.
[39 FR 7262, Feb. 25, 1974, as amended at 43 FR 13066, Mar. 29, 1978; 55
FR 14978, Apr. 20, 1990; 70 FR 48323, Aug. 17, 2005]
Sec.18.4 Information collection requirements.
(a) The Office of Management and Budget under 44 U.S.C. 3501 et seq.
has approved the information collection requirements contained in
Subpart D and assigned clearance number 1018-0022. The Service is
collecting this information to review and evaluate permit applications
and make decisions according to criteria established in various Federal
wildlife conservation statutes and regulations, on the issuance or
denial of permits. The applicant must respond to obtain or retain a
permit.
(b) The Service estimated the public reporting burden for this
collection of information to vary from 15 minutes to 4 hours per
response, with an average of 1.028 hours per response, including
[[Page 8]]
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden or
any other aspect of this collection of information, including
suggestions for reducing the burden, to the Service's Information
Collection Clearance Officer at the address provided at 50 CFR 2.1(b).
[62 FR 7329, Feb. 18, 1997, as amended at 79 FR 43965, July 29, 2014]
Subpart B_Prohibitions
Sec.18.11 Prohibited taking.
Except as otherwise provided in subpart C, D, or H of this part 18,
or part 403, it is unlawful for:
(a) Any person, vessel, or conveyance subject to the jurisdiction of
the United States to take any marine mammal on the high seas, or
(b) Any person, vessel, or conveyance to take any marine mammal in
waters or on lands under the jurisdiction of the United States.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
Sec.18.12 Prohibited importation.
(a) Except as otherwise provided in subparts C and D of this part
18, it is unlawful for any person to import any marine mammal or marine
mammal product into the United States.
(b) Regardless of whether an importation is otherwise authorized
pursuant to subparts C and D of this part 18, it is unlawful for any
person to import into the United States any:
(1) Marine mammal: (i) Taken in violation of the Act, or
(ii) Taken in another country in violation of the laws of that
country;
(2) Any marine mammal product if: (i) The importation into the
United States of the marine mammal from which such product is made would
be unlawful under paragraph (b)(1) of this section, or
(ii) The sale in commerce of such product in the country of origin
of the product is illegal.
(c) Except in accordance with an exception referred to in subpart C
and Sec. Sec.18.31 and 18.32 of this part, it is unlawful to import
into the United States any:
(1) Marine mammal which was pregnant at the time of taking;
(2) Marine mammal which was nursing at the time of taking, or less
than 8 months old, whichever occurs later;
(3) Specimen of an endangered or threatened species of marine
mammals;
(4) Specimen taken from a depleted species or stock of marine
mammals; or
(5) Marine mammal taken in an inhumane manner.
(d) It is unlawful to import into the United States any fish,
whether fresh, frozen, or otherwise prepared, if such fish was caught in
a manner proscribed by the Secretary of Commerce for persons subject to
the jurisdiction of the United States, whether or not any marine mammals
were in fact taken incident to the catching of the fish.
Sec.18.13 Prohibited uses, possession, transportation, and sales.
Except as otherwise provided in the Act or these regulations, it is
unlawful for:
(a) Any person to use any port, harbor, or other place under the
jurisdiction of the United States for any purpose in any way connected
with a prohibited taking or any unlawful importation of any marine
mammal or marine mammal products;
(b) Any person to possess any marine mammal, or product therefrom,
taken in violation of the Act or these regulations;
(c) Any person to transport, purchase, sell, or offer to purchase or
sell any marine mammal or marine mammal product; or
(d) Any person subject to the jurisdiction of the United States to
use in a commercial fishery, any means or method of fishing in
contravention of regulations and limitations issued by the Secretary of
Commerce for that fishery to achieve the purposes of this Act.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
[[Page 9]]
Sec.18.14 Marine mammals taken before the Act.
(a) Section 102(e) of the Act provides in effect that the Act shall
not apply to any marine mammal taken prior to December 21, 1972, or to
any marine mammal product consisting of, or composed in whole or in part
of, any marine mammal taken before such date. Such status may be
established by submitting to the Director prior to, or at the time of
importation, an affidavit containing the following:
(1) The Affiant's name and address;
(2) Identification of the Affiant;
(3) A description of the marine mammals or marine mammal products
which the Affiant desires to import;
(4) A statement by the Affiant that to the best of his knowledge and
belief, the marine mammals involved in the application were taken prior
to December 21, 1972;
(5) A statement by the Affiant in the following language:
The foregoing is principally based on the attached exhibits which,
to the best of my knowledge and belief, are complete, true and correct.
I understand that this affidavit is being submitted for the purpose of
inducing the Federal Government to permit the importation of _____ under
the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407) and
regulations promulgated thereunder, and that any false statements may
subject me to the criminal penalties of 18 U.S.C. 1001.
(b) Either one of two exhibits shall be attached to such affidavit,
and will contain either:
(1) Records or other available evidence showing that the product
consists of or is composed in whole or in part of marine mammals taken
prior to December 21, 1972. Such records or other evidentiary material
must include information on how, when, where, and by whom the animals
were taken, what processing has taken place since taking, and the date
and location of such processing; or
(2) A statement from a government agency of the country of origin
exercising jurisdiction over marine mammals that any and all such
mammals from which the products sought to be imported were derived were
taken prior to December 21, 1972.
(c) Service agents, or Customs officers, may refuse to clear marine
mammals or marine mammal products for importation into the United
States, pursuant to Sec.14.53 of this subchapter, until the importer
can demonstrate, by production of the affidavit referred in above or
otherwise, that section 102(e) of the Act applies to all affected items.
(d) This section has no application to any marine mammal or marine
mammal product intended to be imported pursuant to Sec.18.21, Sec.
18.31 or Sec.18.32 of this part.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
Subpart C_General Exceptions
Sec.18.21 Actions permitted by international treaty, convention,
or agreement.
The Act and these regulations shall not apply to the extent that
they are inconsistent with the provisions of any international treaty,
convention or agreement, or any statute implementing the same, relating
to the taking or importation of marine mammals or marine mammal
products, which was existent and in force prior to December 21, 1972,
and to which the United States was a party. Specifically, the
regulations in subpart B of this part and the provisions of the Act
shall not apply to activities carried out pursuant to the Interim
Convention on the Conservation of North Pacific Fur Seals signed in
Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C.
1151-1187, as, in each case, from time to time amended.
Sec.18.22 Taking by Federal, State or local government officials.
(a) A Federal, State or local government official or employee may
take a marine mammal in the course of his duties as an official or
employee and no permit shall be required, if such taking:
(1) Is accomplished in a humane manner;
(2) Is for the protection or welfare of such mammal or from the
protection of the public health or welfare; and
(3) Includes steps designed to insure return of such mammal, if not
killed in
[[Page 10]]
the course of such taking, to its natural habitat. In addition, any such
official or employee may, incidental to such taking, possess and
transport, but not sell or offer for sale, such mammal and use any port,
harbor or other place under the jurisdiction of the United States. All
steps reasonably practicable under the circumstances shall be taken by
any such employee or official to prevent injury or death to the marine
mammal as the result of such taking.
(b) Each taking permitted under this section should be included in a
written report, to be submitted to the Director every six months,
beginning December 31, 1973. Unless otherwise permitted by the Director,
the report shall contain a description of:
(1) The animal involved;
(2) The circumstances requiring the taking;
(3) The method of taking;
(4) The name and official position of the State official or employee
involved;
(5) The disposition of the animal, including in cases where the
animal has been retained in captivity, a description of the place and
means of confinement and the measures taken for its maintenance and
care; and
(6) Such other information as the Director may require.
The reports shall be mailed to the Director, U.S. Fish and Wildlife
Service, U.S. Department of the Interior, Washington, DC 20240.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
Sec.18.23 Native exemptions.
(a) Taking. Except as otherwise provided in part 403 of this title,
any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the
coast of the North Pacific Ocean or the Arctic Ocean may take any marine
mammal without a permit, subject to the restrictions contained in this
section, if such taking is:
(1) For subsistence purposes, or
(2) For purposes of creating and selling authentic native articles
of handicraft and clothing, and
(3) In each case, not accomplished in a wasteful manner.
(b) Restrictions. (1) ``Except for a transfer to a duly authorized
representative of the Regional Director of the U.S. Fish and Wildlife
Service for scientific research purposes, no marine mammal taken for
subsistence may be sold or otherwise transferred to any person other
than an Alaskan Native or delivered, carried, transported, or shipped in
interstate or foreign commerce, unless:
(i) It is being sent by an Alaskan Native directly or through a
registered agent to a tannery registered under paragraph (c) of this
section for the purpose of processing, and will be returned directly or
through a registered agent to the Alaskan Native; or
(ii) It is sold or transferred to a registered agent in Alaska for
resale or transfer to an Alaskan Native; or
(iii) It is an edible portion and it is sold in an Alaskan Native
village or town.
(2) ``Except for a transfer to a duly authorized representative of
the Regional Director of the U.S. Fish and Wildlife Service for
scientific research purposes, no marine mammal taken for purposes of
creating and selling authentic Native articles of handicraft and
clothing may be sold or otherwise transferred to any person other than
an Indian, Aleut or Eskimo, or delivered, carried, transported or
shipped in interstate or foreign commerce, unless:
(i) It is being sent by an Indian, Aleut or Eskimo directly or
through a registered agent to a tannery registered under paragraph (c)
of this section for the purpose of processing, and will be returned
directly or through a registered agent to the Indian, Aleut or Eskimo;
or
(ii) It is sold or transferred to a registered agent for resale or
transfer to an Indian, Aleut, or Eskimo; or
(iii) It has been first transformed into an authentic Native article
of handicraft or clothing; or
(iv) It is an edible portion and it is sold (A) in an Alaskan Native
village or town or (B) to an Alaskan Native for his consumption.
(c) The restriction in paragraph (b) shall not apply to parts or
products of the Pacific walrus (Odobenis rosmarus) to the extent that
the waiver of the moratorium and the approved State/Federal regulations
relating to the
[[Page 11]]
taking and importation of walrus permits the delivery, sale,
transportation or shipment of parts or products of the Pacific walrus in
interstate or foreign commerce.
(d) Any tannery, or person who wishes to act as an agent, within the
jurisdiction of the United States may apply to the Director for
registration as a tannery or an agent which may possess and process
marine mammal products for Indians, Aleuts, or Eskimos. The application
shall include the following information:
(1) The name and address of the applicant;
(2) A description of the applicant's procedures for receiving,
storing, processing, and shipping materials;
(3) A proposal for a system of bookkeeping and/or inventory
segregation by which the applicant could maintain accurate records of
marine mammals received from Indians, Aleuts, or Eskimos, pursuant to
this section;
(4) Such other information as the Director may request;
(5) A certification in the following language:
I hereby certify that the foregoing information is complete, true,
and correct to the best of my knowledge and belief. I understand that
this information is submitted for the purpose of obtaining the benefit
of an exception under the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361-1407) and regulations promulgated thereunder, and that any
false statement may subject me to the criminal penalties of 18 U.S.C.
1001.
(6) The signature of the applicant.
The sufficiency of the application shall be determined by the Director,
and in that connection, he may waive any requirement for information, or
require any elaboration or further information deemed necessary. The
registration of a tannery or other agent shall be subject to the
conditions as the Director prescribes, which may include, but are not
limited to provisions regarding records, inventory segregation, reports,
and inspection. The Director may charge a reasonable fee for such
applications, including an appropriate apportionment of overhead and
administrative expenses of the Department of Interior.
(e) Notwithstanding the preceding provisions of this section,
whenever, under the Act, the Secretary determines any species or stock
of marine mammals to be depleted, he may prescribe regulations pursuant
to section 103 of the Act upon the taking of such marine mammals by any
Indian, Aleut, or Eskimo and, after promulgation of such regulations,
all takings of such marine mammals by such person shall conform to such
regulations.
(f) Marking, tagging, and reporting. (1) In addition to definitions
contained in the Act, 50 CFR 18.3, and 50 CFR 18.27, in this paragraph
(f):
(i) The term ``marking and tagging'' of marine mammals as specified
in section 109(i) of the Act refers to the actual physical attachment of
an approved band or other such marking device or technique to the raw or
unhandicrafted (including unmarked tanned skins) skin and skull of polar
bears, the tusks of walruses, and the skin and skull of sea otters; and
(ii) The term ``reporting'' means the collection by Service
personnel or the Service's authorized local representatives of
biological data, harvest data, and other information regarding the
effect of taking of marine mammals on populations, the collection of
which the Service determines to be necessary for management purposes.
Reporting will be done on forms provided by the Service upon
presentation for marking, tagging, and reporting purposes of the marine
mammal(s) or specified raw or unhandicrafted parts thereof.
(2) Notwithstanding the preceding provisions of this section, but
subject to the provisions and conditions contained in this paragraph, no
polar bear, walrus, or sea otter, or any parts thereof, taken or
collected by an Alaskan Native for subsistence purposes or for purposes
of creating and selling authentic Native articles of handicrafts and
clothing may be possessed, transported within, or exported from Alaska
unless the animal(s), or specified parts thereof, have been reported to,
and properly marked and tagged by, Service personnel or the Service's
authorized local representative; except:
(i) An Alaskan Native that harvested or participated in the harvest
of a polar bear, sea otter, or walrus and who possesses the animal, or
any parts thereof, may possess the unmarked,
[[Page 12]]
untagged, and unreported animal(s), or parts thereof, for a period of
time not to exceed 30 days from the time of taking for the purpose of
transporting the specified parts to Service personnel or the Service's
local authorized representative for marking, tagging, and reporting;
(ii) Alaskan Natives and registered agents/tanneries may possess the
specified unmarked or untagged raw, unhandicrafted, or tanned parts
thereof for a period of time not to exceed 180 days from the effective
date of this rulemaking for the purpose of transporting to Service
personnel or the Service's local authorized representative for marking
and tagging if the specified parts thereof were taken or possessed
between December 21, 1972, and the effective date of this regulation.
There is no reporting requirement for marine mammals, or specified parts
thereof, covered by this paragraph.
(3) Those unmarked, untagged, and unreported specified parts of
polar bear, walrus, and sea otter, that must be presented to Service
personnel or an authorized Service representative for marking, tagging,
and reporting are as follows:
(i) Polar bear--skin and skull.
(ii) Walrus--tusks.
(iii) Sea otter--skin and skull.
(4) The locations where Service personnel or the Service's
authorized local representative will be available for marking, tagging,
and reporting purposes will be announced annually by the Alaska Regional
Director. Local persons authorized to act as representatives for
marking, tagging, and reporting purposes in the absence of Service
personnel will also be announced annually by the Alaska Regional
Director.
(5) Marks and tags will be attached or applied to the skins, skulls,
and tusks of the marine mammal(s) in such a manner as to maximize their
longevity and minimize their adverse effects to the appearance of the
specified parts that might result due to hindering the tanning or
handicrafting of skins, or the handicrafting of tusks or skulls. If the
tag or mark comes off of the specified part the person in possession of
the part shall have 30 days to present the part and broken tag or other
marking device to the Service or the Service's authorized local
representative for remarking or retagging purposes.
(6) Marks and tags for skins, skulls, and tusks will be provided by
the Service. They will be numbered for accountability and of such
design, construction, and material so as to maximize their durability
and longevity on the specified parts.
(7) Data collected pursuant to this paragraph will be reported on
forms provided by the Service and maintained in the Service's Regional
Office, Anchorage, Alaska. The Service will summarize the data annually
and make it publicly available. The data will also be included in the
Service's annual report to Congress as set forth in section 103(f) of
the Act.
(8) All items of research (e.g., radio collars, satellite
transmitters, tags, etc.) that were attached to animals taken by Alaskan
Natives must be returned to Service personnel or an authorized Service
representative at the time the animal, or specified unhandicrafted parts
thereof, are presented for marking, tagging, and reporting. No penalty
will be imposed under the Act for a violation of this paragraph.
However, penalties may be sought by the Service under other applicable
Federal laws governing the possession and use of Federal property.
(9) Pursuant to this paragraph (f), the following specific
conditions and provisions apply:
(i) Marking, tagging, and reporting of polar bears or specified
parts thereof.
(A) The skin and skull of an animal must accompany each other when
presented for marking, tagging, and reporting except that the skin and
skull of an animal need not be presented together for marking and
tagging purposes if taken between December 21, 1972, and the effective
date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the
following information must be reported by Alaskan Natives when
presenting polar bears, or specified parts thereof, for marking and
tagging: sex of animal, date of kill, and location of kill.
[[Page 13]]
(C) Both the skin and the skull will be marked and tagged and a
rudimentary pre-molar tooth may be removed from the skull and retained
by the Service. The skin must have the sex identifiers, such as vaginal
orifice, teats, or penal sheath or baculum, either attached to, or
accompanying the skin.
(D) The skull must be skinned out and the skin may be frozen or
unfrozen when presented for marking, tagging, and reporting. If the skin
is frozen, the sex identifiers, such as vaginal orifice, teats, penal
sheath or baculum, must be visible.
(E) Marks and tags must remain affixed to the skin through the
tanning process and until the skin has been severed into parts for
crafting into handicrafts or for as long as is practical during the
handicrafting process.
(ii) Marking, tagging, and reporting of walrus or specified parts
thereof.
(A) The paired tusks of the animal(s) must, to the maximum extent
practical, accompany each other when presented for marking, tagging, and
reporting purposes, except that paired tusks need not be presented
together for marking and tagging purposes if taken between December 21,
1972, and the effective date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the
following information must be reported by Alaskan Natives when
presenting walrus, or specified parts thereof, for marking and tagging:
date of take, sex of animal, whether live-killed, floating-dead, or
beach-found, and location of the take or location of animal if found
floating and dead or beach-found.
(C) Marks and/or tags must remain affixed to the tusks until they
have been crafted into a handicraft or for as long as is practical
during the handicrafting process.
(iii) Marking, tagging, and reporting of sea otter or specified
parts thereof.
(A) The skin and skull of an animal must accompany each other when
presented for marking, tagging, and reporting, except that the skin and
skull of an animal need not be presented together if taken between
December 21, 1972, and the effective date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the
following information must be reported by Alaskan Natives when
presenting sea otters, or specified parts thereof, for marking and
tagging: date of kill, sex of animal, and location of kill.
(C) Both the skin and skull will be marked and tagged and a
rudimentary pre-molar tooth may be removed from the skull and retained
by the Service. The skin must have the sex identifiers, such as vaginal
orifice, teats, or penal sheath or baculum, either attached to, or
accompanying the skin.
(D) The skull must be skinned out and the skin may be frozen or
unfrozen when presented for marking, tagging, and reporting. If the skin
is frozen, the sex identifiers, such as vaginal orifice, teats, or penal
sheath or baculum, must be visible.
(E) Marks and tags must remain affixed to the skin through the
tanning process and until the skin has been severed into parts for
crafting into handicrafts or for as long as is practical during the
handicrafting process.
(10) No person may falsify any information required to be set forth
on the reporting form when the marine mammal(s), or specified parts
thereof, are presented as required by these regulations.
(11) Possession by any person of marine mammal(s), or any parts
thereof, in violation of the provisions and conditions of this Sec.
18.23(f) is subject to punishment under the penalties provided for in
section 105(a)(1) of the Act.
(12) The information collection requirements contained in this Sec.
18.23(f) have been approved by the Office of Management and Budget under
44 U.S.C. 3501 et seq. and assigned clearance number 1018-0066. The
information is mandatory in order to have the marine mammal parts
``marked and tagged,'' and thereby made eligible for continued lawful
possession. Non-response may result in the Service determining the
wildlife to be illegally possessed and subject the individual to
penalties under this title.
[39 FR 7262, Feb. 25, 1974, as amended at 40 FR 59444, Dec. 24, 1975; 45
FR 54057, Aug. 14, 1980; 51 FR 17981, May 16, 1986; 53 FR 24283, June
28, 1988]
[[Page 14]]
Sec.18.24 Taking incidental to commercial fishing operations.
Persons may take marine mammals incidental to commercial fishing
operations until October 21, 1974: Provided, That such taking is by
means of equipment and techniques prescribed in regulations issued by
the Secretary of Commerce. However, any marine mammal taken as an
incidental catch may not be retained. It shall be the immediate goal
that the incidental kill or incidental serious injury of marine mammals
permitted in the course of commercial fishing operations be reduced to
insignificant levels approaching a zero mortality and serious injury
rate.
Sec.18.25 Exempted marine mammals or marine mammal products.
(a) The provisions of the Act and these regulations shall not apply:
(1) To any marine mammal taken before December 21, 1972, or
(2) To any marine mammal product if the marine mammal portion of
such product consists solely of a marine mammal taken before such date.
(b) The prohibitions contained in Sec.18.12(c) (3) and (4) shall
not apply to marine mammals or marine mammal products imported into the
United States before the date on which notice is published in the
Federal Register of the proposed rulemaking with respect to the
designation of the species of stock concerned as depleted or endangered:
(c) Section 18.12(b) shall not apply to articles imported into the
United States before the effective date of the foreign law making the
taking or sale, as the case may be, of such marine mammals or marine
mammal products unlawful.
Sec.18.26 Collection of certain dead marine mammal parts.
(a) Any bones, teeth or ivory of any dead marine mammal may be
collected from a beach or from land within \1/4\ of a mile of the ocean.
The term ``ocean'' includes bays and estuaries.
(b) Marine mammal parts so collected may be retained if registered
within 30 days with an agent of the National Marine Fisheries Service,
or an agent of the U.S. Fish and Wildlife Service.
(c) Registration shall include (1) the name of the owner, (2) a
description of the article to be registered and (3) the date and
location of collection.
(d) Title to any marine mammal parts collected under this section is
not transferable, unless consented to in writing by the agent referred
to in paragraph (b) of this section.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
Sec.18.27 Regulations governing small takes of marine mammals
incidental to specified activities.
(a) Purpose of regulations. The regulations in this section
implement Section 101(a)(5) of the Marine Mammal Protection Act of 1972,
as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for
allowing, upon request, during periods of not more than five consecutive
years each, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region.
(b) Scope of regulations. The taking of small numbers of marine
mammals under section 101(a)(5) of the Marine Mammal Protection Act may
be allowed only if the Director of the Fish and Wildlife Service (1)
finds, based on the best scientific evidence available, that the total
taking during the specified time period will have a negligible impact on
the species or stock and will not have an unmitigable adverse impact on
the availability of the species or stock for subsistence uses; (2)
prescribes regulations setting forth permissible methods of taking and
other means of effecting the least practicable adverse impact on the
species and its habitat and on the availability of the species for
subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance; and (3) prescribes
regulations pertaining to the monitoring and reporting of such taking.
Note: The information collection requirement contained in this Sec.
18.27 has been approved by the Office of Management and
[[Page 15]]
Budget under 44 U.S.C. 3501 et seq. and assigned clearance No. 1018-
0070. The information is being collected to describe the activity
proposed and estimate the cumulative impacts of potential takings by all
persons conducting the activity. The information will be used to
evaluate the application and determine whether to issue Specific
Regulations and, subsequently, Letters of Authorization. Response is
required to obtain a benefit.
The public reporting burden from this requirement is estimated to
vary from 2 to 200 hours per response with an average of 10 hours per
response including time for reviewing instructions, gathering and
maintaining data, and completing and reviewing applications for specific
regulations and Letters of Authorization. Direct comments regarding the
burden estimate or any other aspect of this requirement to the Service's
Information Collection Clearance Officer at the address provided at 50
CFR 2.1(b).
(c) Definitions. In addition to definitions contained in the Act and
in 50 CFR 18.3 and unless the context otherwise requires, in this
section:
Citizens of the United States and U.S. citizens mean individual U.S.
citizens or any corporation or similar entity if it is organized under
the laws of the United States or any governmental unit defined in 16
U.S.C. 1362(13). U.S. Federal, State and local government agencies shall
also constitute citizens of the United States for purposes of this
section.
Incidental, but not intentional, taking means takings which are
infrequent, unavoidable, or accidental. It does not mean that the taking
must be unexpected. (Complete definition of take is contained in 50 CFR
18.3.)
Negligible impact is an impact resulting from the specified activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates of
recruitment or survival.
Small numbers means a portion of a marine mammal species or stock
whose taking would have a negligible impact on that species or stock.
Specified activity means any activity, other than commercial
fishing, which takes place in a specified geographical region and
potentially involves the taking of small numbers of marine mammals. The
specified activity and specified geographical region should be
identified so that the anticipated effects on marine mammals will be
substantially similar.
Specified geographical region means an area within which a specified
activity is conducted and which has similar biogeographic
characteristics.
Unmitigable adverse impact means an impact resulting from the
specified activity (1) that is likely to reduce the availability of the
species to a level insufficient for a harvest to meet subsistence needs
by (i) causing the marine mammals to abandon or avoid hunting areas,
(ii) directly displacing subsistence users, or (iii) placing physical
barriers between the marine mammals and the subsistence hunters; and (2)
that cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.
(d) Submission of requests. (1) In order for the Fish and Wildlife
Service to consider allowing the taking by U.S citizens of small numbers
of marine mammals incidental to a specified activity, a written request
must be submitted to the Director, U.S. Fish and Wildlife Service,
Department of the Interior, Washington, DC 20240. Requests shall include
the following information on the activity as a whole, which includes,
but is not limited to, an assessment of total impacts by all persons
conducting the activity:
(i) A description of the specific activity or class of activities
that can be expected to result in incidental taking of marine mammals;
(ii) The dates and duration of such activity and the specific
geographical region where it will occur;
(iii) Based upon the best available scientific information;
(A) An estimate of the species and numbers of marine mammals likely
to be taken by age, sex, and reproductive conditions, and the type of
taking (e.g., disturbance by sound, injury or death resulting from
collision, etc.) and the number of times such taking is likely to occur;
(B) A description of the status, distribution, and seasonal
distribution (when applicable) of the affected species or stocks likely
to be affected by such activities;
[[Page 16]]
(C) The anticipated impact of the activity upon the species or
stocks;
(D) The anticipated impact of the activity on the availability of
the species or stocks for subsistence uses;
(iv) The anticipated impact of the activity upon the habitat of the
marine mammal populations and the likelihood of restoration of the
affected habitat;
(v) The anticipated impact of the loss or modification of the
habitat on the marine mammal population involved;
(vi) The availability and feasibility (economic and technological)
of equipment, methods, and manner of conducting such activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks, their habitat, and, where relevant, on their
availability for subsistence uses, paying particular attention to
rookeries, mating grounds, and areas of similar significance. (The
applicant and those conducting the specified activity and the affected
subsistence users are encouraged to develop mutually agreeable
mitigating measures that will meet the needs of subsistence users.);
(vii) Suggested means of accomplishing the necessary monitoring and
reporting which will result in increased knowledge of the species
through an analysis of the level of taking or impacts and suggested
means of minimizing burdens by coordinating such reporting requirements
with other schemes already applicable to persons conducting such
activity; and
(viii) Suggested means of learning of, encouraging, and coordinating
research opportunities, plans and activities relating to reducing such
incidental taking from such specified activities, and evaluating its
effects.
(2) The Director shall determine the adequacy and completeness of a
request, and if found to be adequate, will invite information,
suggestions, and comments on the preliminary finding of negligible
impact and on the proposed specific regulations through notice in the
Federal Register, newspapers of general circulation, and appropriate
electronic media in the coastal areas that may be affected by such
activity. All information and suggestions will be considered by the Fish
and Wildlife Service in developing final findings and effective specific
regulations.
(3) The Director shall evaluate each request to determine, based on
the best available scientific evidence, whether the total taking will
have a negligible impact on the species or stock and, where appropriate,
will not have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses. If the Director finds that
mitigating measures would render the impact of the specified activity
negligible when it would not otherwise satisfy that requirement, the
Director may make a finding of negligible impact subject to such
mitigating measures being successfully implemented. Any preliminary
findings of ``negligible impact'' and ``no unmitigable adverse impact''
shall be proposed for public comment along with the proposed specific
regulations.
(4) If the Director cannot make a finding that the total taking will
have a negligible impact in the species or stock or will not have an
unmitigable adverse impact on the availability of such species or stock
for subsistence uses, the Director shall publish in the Federal Register
the negative finding along with the basis for denying the request.
(e) Specific regulations. (1) Specific regulations will be
established for each allowed activity which set forth (i) permissible
methods of taking, (ii) means of effecting the least practicable adverse
impact on the species and its habitat and on the availability of the
species for subsistence uses, and (iii) requirements for monitoring and
reporting.
(2) Regulations will be established based on the best available
scientific information. As new information is developed, through
monitoring, reporting, or research, the regulations may be modified, in
whole or part, after notice and opportunity for public review.
(f) Letters of Authorization. (1) A Letter of Authorization, which
may be issued only to U.S. citizens, is required to conduct activities
pursuant to any specific regulations established. Requests for Letters
of Authorization shall be submitted to the Director, U.S. Fish and
Wildlife Service, Department
[[Page 17]]
of the Interior, Washington, DC 20240. The information to be submitted
in a request may be obtained by writing the Director. Once specific
regulations are effective, the Service will to the maximum extent
possible, process subsequent applications for Letters of Authorization
within 30 days after receipt of the application by the Service.
(2) Issuance of a Letter of Authorization will be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under the specific
regulations.
(3) Notice of issuance of all Letters of Authorization will be
published in the Federal Register within 30 days of issuance.
(4) Letters of Authorization will specify the period of validity and
any additional terms and conditions appropriate for the specific
request.
(5) Letters of Authorization shall be withdrawn or suspended, either
on an individual or class basis, as appropriate, if, after notice and
opportunity for public comment, the Director determines: (i) The
regulations prescribed are not being substantially complied with, or
(ii) the taking allowed is having, or may have, more than a negligible
impact on the species or stock, or where relevant, an unmitigable
adverse impact on the availability of the species or stock for
subsistence uses.
(6) The requirement for notice and opportunity for public review in
paragraph (f)(5) of this section shall not apply if the Director
determines that an emergency exists which poses a significant risk to
the well-being of the species or stocks of marine mammals concerned.
(7) A violation of any of the terms and conditions of a Letter of
Authorization or of the specific regulations may subject the Holder and/
or any individual who is operating under the authority of the Holder's
Letter of Authorization to penalties provided in the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361-1407).
[48 FR 31225, July 7, 1983, as amended at 54 FR 40348, Sept. 29, 1989;
55 FR 28765, July 13, 1990; 56 FR 27463, June 14, 1991; 79 FR 43965,
July 29, 2014]
Subpart D_Special Exceptions
Sec.18.30 Polar bear sport-hunted trophy import permits.
(a) Application procedure. You, as the hunter or heir of the
hunter's estate, must submit an application for a permit to import a
trophy of a polar bear taken in Canada to the Division of Management
Authority at the address provided at 50 CFR 2.1(b). You must use an
official application (Form 3-200) provided by the Service and must
include as an attachment all of the following additional information:
(1) Certification that:
(i) You or the deceased hunter took the polar bear as a personal
sport-hunted trophy;
(ii) You will use the trophy only for personal display purposes;
(iii) The polar bear was not a pregnant female, a female with
dependent nursing cub(s) or a nursing cub (such as in a family group),
or a bear in a den or constructing a den when you took it; and
(iv) For a polar bear taken after April 30, 1994, you made sure the
gall bladder and its contents were destroyed;
(2) Name and address of the person in the United States receiving
the polar bear trophy if other than yourself;
(3) For a polar bear received as an inheritance, documentation to
show that you are the legal heir of the decedent who took the trophy;
(4) Proof that you or the decedent legally harvested the polar bear
in Canada as shown by one of the following:
(i) A copy of the Northwest Territories (NWT) or Nunavut Territory
hunting license and tag number;
(ii) A copy of the Canadian CITES export permit that identifies the
polar bear by hunting license and tag number;
(iii) A copy of the NWT or Nunavut Territory export permit; or
(iv) A certification from the Department of Resources, Wildlife, and
Economic Development, Northwest Territories, or the Department of
Sustainable Development, Nunavut Territory, that you or the decedent
legally harvested the polar bear, giving the tag
[[Page 18]]
number, location (settlement and population), and season you or the
decedent took the bear;
(5) An itemized description of the polar bear parts you wish to
import, including size and the sex of the polar bear;
(6) The month and year the polar bear was sport hunted;
(7) The location (nearest settlement or community) where the bear
was sport hunted;
(8) For a female bear or a bear of unknown sex that was taken before
January 1, 1986, documentary evidence that the bear was not pregnant at
the time of take, including, but not limited to, documentation, such as
a hunting license or travel itinerary, that shows the bear was not taken
in October, November, or December or that shows that the location of the
hunt did not include an area that supported maternity dens; and
(9) For a female bear, bear of unknown sex, or male bear that is
less than 6 feet in length (from tip of nose to the base of the tail)
that was taken prior to the 1996/97 NWT polar bear harvest season,
available documentation to show that the bear was not nursing,
including, but not limited to, documentation, such as a certification
from the NWT, that the bear was not taken while part of a family group.
(b) Definitions. In addition to the definitions in this paragraph,
the definitions in 50 CFR 10.12, 18.3, and 23.3 apply to this section.
(1) Sport-hunted trophy means a mount, rug or other display item
composed of the hide, hair, skull, teeth, baculum, bones, and claws of
the specimen which was taken by the applicant or decedent during a sport
hunt for personal, noncommercial use and does not include any internal
organ of the animal, including the gall bladder. Articles made from the
specimen, such as finished or unfinished, worked, manufactured, or
handicraft items for use as clothing, curio, ornamentation, jewelry, or
as a utilitarian item are not considered trophy items.
(2) Management agreement means a written agreement between parties
that share management responsibilities for a polar bear population which
describes what portion of the harvestable quota will be allocated to
each party and other measures which may be taken for the conservation of
the population, such as harvest seasons, sex ratio of the harvest, and
protection of females and cubs.
(c) Procedures for issuance of permits and modification, suspension
or revocation of permits. We, the Service, shall suspend, modify or
revoke permits issued under this section:
(1) In accordance with regulations contained in Sec.18.33; and
(2) If, in consultation with the appropriate authority in Canada, we
determine that the sustainability of Canada's polar bear populations is
being adversely affected or that sport hunting may be having a
detrimental effect on maintaining polar bear populations throughout
their range.
(d) Issuance criteria. In deciding whether to issue an import permit
for a sport-hunted trophy, we must determine in addition to the general
criteria in part 13 of this subchapter whether:
(1) You previously imported the specimen into the United States
without a permit;
(2) The specimen meets the definition of a sport-hunted trophy in
paragraph (b) of this section;
(3) You legally harvested the polar bear in Canada;
(4) Canada has a monitored and enforced sport-hunting program
consistent with the purposes of the 1973 International Agreement on the
Conservation of Polar Bears;
(5) Canada has a sport-hunting program, based on scientifically
sound quotas, ensuring the maintenance of the affected population at a
sustainable level; and
(6) The export and subsequent import:
(i) Are consistent with the provisions of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES) and other international agreements and conventions; and
(ii) Are not likely to contribute to illegal trade in bear parts,
including for bears taken after April 30, 1994, that the gall bladder
and its contents were destroyed.
(e) Additional permit conditions. Your permit to import a sport-
hunted trophy
[[Page 19]]
of a polar bear taken in Canada is subject to the permit conditions
outlined in Sec.18.31(d) and the following additional permit
conditions:
(1) You, the permittee, may not import internal organs of the polar
bear, including the gall bladder;
(2) After import you may not alter or use the trophy in a manner
inconsistent with the definition of a sport-hunted polar bear trophy as
given in Sec.18.30(b);
(3) You may not import a sport-hunted trophy if the polar bear at
the time you or the decedent took it was:
(i) A nursing bear or a female with nursing young (i.e., part of a
family group);
(ii) A pregnant female; or
(iii) A bear moving into a den or in a den;
(4) You must present to Service personnel at the time of import a
valid CITES document from the country of export or re-export;
(5) You must comply with the following import procedures:
(i) Import the sport-hunted trophy through a designated port for
wildlife imports (see Sec.14.12 of this subchapter) during regular
business hours, except for full mount trophies that have been granted an
exception to designated port permit requirements under Sec.14.32 of
this subchapter;
(ii) Not send the trophy through the international mail; and
(iii) Notify Service personnel at the port at least 48 hours before
the import (see Sec.14.54 of this subchapter) and make arrangements
for Service personnel to affix a tag in accordance with paragraph (e)(7)
of this section prior to being cleared (see Sec.14.52 of this
subchapter);
(6) You must import all parts of a single trophy at the same time;
(7) The following tagging/marking procedures apply:
(i) Service personnel must affix a permanently locking tag that
contains a unique serial number and the common name ``polar bear'' to
the hide which must remain fixed indefinitely to the hide as proof of
legal import; and
(ii) Service personnel must permanently mark upon import the parts
of the trophy other than the hide, such as the skull and bones, with the
hide tag number; and
(8) If the tag comes off the hide, you must within 30 days:
(i) Contact the nearest Service office at a designated port or a Law
Enforcement office as given in Sec.10.22 of this subchapter to
schedule a time to present the trophy for retagging;
(ii) Provide as proof that the trophy had been tagged and legally
imported a copy of the:
(A) Canceled CITES export permit or re-export certificate;
(B) Canceled U.S. import permit issued under this section; or
(C) Cleared wildlife declaration form (3-177); and
(iii) Present either the broken tag, or if the tag was lost, a
signed written explanation of how and when the tag was lost.
(f) Duration of permits. The permit will be valid for no more than
one year from the date of issuance.
(g) Fees. (1) You must pay the standard permit processing fee as
given in Sec.13.11(4) when filing an application.
(2) You must pay the issuance fee of $1,000 when we notify you the
application is approved. We cannot issue an import permit until you pay
this fee. We will use the issuance fee to develop and implement
cooperative research and management programs for the conservation of
polar bears in Alaska and Russia under section 113(d) of the Marine
Mammal Protection Act.
(h) Scientific review. (1) We will undertake a scientific review of
the impact of permits issued under this section on the polar bear
populations in Canada within 2 years of March 20, 1997.
(i) The review will provide an opportunity for public comment and
include a response to the public comment in the final report; and
(ii) We will not issue permits under this section if we determine,
based upon scientific review, that the issuance of permits under this
section is having a significant adverse impact on the polar bear
populations in Canada; and
(2) After the initial review, we may review whether the issuance of
permits under this section is having a significant adverse impact on the
polar bear populations in Canada annually in
[[Page 20]]
light of the best scientific information available. The review must be
completed no later than January 31 in any year a review is undertaken.
(i) Findings. Polar bear sport-hunted trophies may only be imported
after issuance of an import permit, and in accordance with the following
findings and conditions:
(1) We have determined that the Northwest Territories and Nunavut
Territory, Canada, have a monitored and enforced sport-hunting program
that meets issuance criteria of paragraphs (d) (4) and (5) of this
section for the following populations: Southern Beaufort Sea, Northern
Beaufort Sea, Viscount Melville Sound (subject to the lifting of the
moratorium in this population), Western Hudson Bay, M'Clintock Channel
(only for polar bears lawfully taken on or before May 31, 2000),
Lancaster Sound, and Norwegian Bay, and that:
(i) For the Southern Beaufort Sea population, no bears are taken
west of the equidistant line of the Beaufort Sea;
(ii) For all populations, females with cubs, cubs, or polar bears
moving into denning areas or already in dens are protected from taking
by hunting activities; and
(iii) For all populations, management agreements among all
management entities with scientifically sound quotas are in place; and
(2) Any sport-hunted trophy taken in the Northwest Territories,
Canada, between December 21, 1972, and April 30, 1994, may be issued an
import permit when:
(i) From an approved population listed in paragraph (i)(1); and
(ii) The issuance criteria of paragraph (d) (1), (2), (3), and (6)
of this section are met.
[62 FR 7329, Feb. 18, 1997, as amended at 64 FR 1539, Jan. 11, 1999; 66
FR 1907, Jan. 10, 2001; 66 FR 50851, Oct. 5, 2001; 79 FR 43965, July 29,
2014]
Sec.18.31 Scientific research permits and public display permits.
The Director may, upon receipt of an application and in accordance
with the issuance criteria of this section, issue a permit authorizing
the taking and importation of marine mammals for scientific research
purposes or for public display.
(a) Application procedure. Applications for permits to take and
import marine mammals for scientific research purposes or for public
display shall be submitted to the Director. Each such application must
contain the general information and certification required by Sec.
13.12(a) of this subchapter plus the following additional information:
(1) A statement of the purpose, date, location and manner of the
taking or importation;
(2) A description of the marine mammal or the marine mammal products
to be taken or imported, including the species or subspecies involved;
the population stock, when known, the number of specimens or products
(or the weight thereof, where appropriate); and the anticipated age,
size, sex, and condition (i.e., whether pregnant or nursing) of the
animals involved;
(3) If the marine mammal is to be taken and transported alive, a
complete description of the manner of transportation, care and
maintenance, including the type, size, and construction of the container
or artificial environment; arrangements for feeding and sanitation; a
statement of the applicant's qualifications and previous experience in
caring for and handling captive marine mammals and a like statement as
to the qualifications of any common carrier or agent to be employed to
transport the animal; and a written certification of a licensed
veterinarian knowledgeable in the field of marine mammals that he has
personally reviewed the arrangements for transporting and maintaining
the animals and that in his opinion they are adequate to provide for the
well-being of the animal;
(4) If the application is for a scientific research permit, a
detailed description of the scientific research project or program in
which the marine mammal or marine mammal product is to be used including
a copy of the research proposal relating to such program or project and
the names and addresses of the sponsor or cooperating institution and
the scientists involved;
[[Page 21]]
(5) If the application is for a scientific research permit, and if
the marine mammal proposed to be taken or imported is listed as an
endangered or threatened species or has been designated by the Secretary
as depleted, a detailed justification of the need for such a marine
mammal, including a discussion of possible alternatives, whether or not
under the control of the applicant; and
(6) If the application is for a public display permit, a detailed
description of the proposed use to which the marine mammal or marine
mammal product is to be put, including the manner, location, and times
of display, whether such display is for profit, an estimate of the
numbers and types of persons who it is anticipated will benefit for such
display, and whether and to what extent the display is connected with
educational or scientific programs. There shall also be included a
complete description of the enterprise seeking the display permit and
its educational, and scientific qualifications, if any.
(b) Review by Marine Mammal Commission. Upon receipt of an
application the Director shall forward the application to the Marine
Mammal Commission together with a request for the recommendations of the
Commission and the Committee of Scientific Advisors on Marine Mammals.
In order to comply with the time limits provided in these regulations,
the Director shall request that such recommendation be submitted within
30 days of receipt of the application by the Commission. If the
Commission or the Committee, as the case may be, does not respond within
30 days from the receipt of such application by the Commission, the
Director shall advise the Commission in writing that failure to respond
within 45 days from original receipt of the application (or such longer
time as the Director may establish) shall be considered as a
recommendation from the Commission and the Committee that the permit be
issued. The Director may also consult with any other person, institution
or agency concerning the application.
(c) Issuance criteria. Permits applied for under this section shall
be issued, suspended, modified and revoked pursuant to regulations
contained in Sec.18.33. In determining whether to issue a scientific
research permit, the Director shall consider whether the proposed taking
or importation will be consistent with the policies and purposes of the
Act; and whether the granting of the permit is required to further a
bona fide and necessary or desirable scientific purpose, taking into
account the benefits anticipated to be derived from the scientific
research contemplated and the effect of the purposed taking or
importation on the population stock and the marine ecosystem. In
determining whether to issue a public display permit, the Director shall
consider whether the proposed taking or importation will be consistent
with the policies and purposes of the Act; whether a substantial public
benefit will be gained from the display contemplated, taking into
account the manner of the display and the anticipated audience on the
one hand, and the effect of the proposed taking or importation on the
population stocks of the marine mammal in question and the marine
ecosystem on the other; and the applicant's qualifications for the
proper care and maintenance of the marine mammal or the marine mammal
product, and the adequacy of his facilities.
(d) Additional permit conditions. In addition to the general
conditions set forth in part 13 of this subchapter B, permits issued
under this section shall be subject to the following conditions:
(1) Any permit issued under these regulations must be in the
possession of the person to whom it is issued (or an agent of such
person) during:
(i) The time of the authorized taking or importation;
(ii) The period of any transit of such person or agent which is
incidental to such taking or importation; and
(iii) Any other time while any marine mammal taken or imported under
such permit is in the possession of such person or agent.
(2) A duplicate copy of the issued permit must be physically
attached to the container, package, enclosure, or other means of
containment, in which the marine mammal is placed for purposes of
storage, transit, supervision, or care.
[[Page 22]]
(e) Tenure of permits. The tenure of permits for scientific research
or public display shall be designated on the face of the permit.
Sec.18.32 Waiver of the moratorium.
See subpart F (Waiver of the moratorium; State laws and regulations)
and subpart G (Notice and Hearing on section 103 Regulations) for
procedures regarding waivers of the moratorium in those circumstances
where a state provides an acceptable management program for a species or
population stock within its jurisdiction.
[40 FR 59442, Dec. 24, 1975]
Sec.18.33 Procedures for issuance of permits and modification,
suspension, or revocation thereof.
(a) Whenever application for a permit is received by the director
which the director deems sufficient, he shall, as soon as practicable,
publish a notice thereof in the Federal Register. Such notice shall set
forth a summary of the information contained in such application. Any
interested party may, within 30 days after the date of publication of
such notice, submit to the director his written data or views with
respect to the taking or importation proposed in such application and
may request a hearing in connection with the action to be taken thereon.
(b) If the request for a hearing is made within the 30-day period
referred to in paragraph (a) of this section, or if the director
determines that a hearing would otherwise be advisable, the director
may, within 60 days after the date of publication of the notice referred
to in paragraph (a) of this section, afford to such requesting party or
parties an opportunity for a hearing. Such hearing shall also be open to
participation by any interested members of the public. Notice of the
date, time, and place of such hearing shall be published in the Federal
Register not less than 15 days in advance of such hearing. Any
interested person may appear in person or through representatives at the
hearing and may submit any relevant material, data, views, comments,
arguments, or exhibits. A summary record of the hearing shall be kept.
(c) As soon as practicable but not later than 30 days after the
close of the hearing (or if no hearing is held, as soon as practicable
after the end of the 30 days succeeding publication of the notice
referred to in paragraph (a) of this section the director shall issue or
deny issuance of the permit. Notice of the decision of the director
shall be published in the Federal Register within 10 days after the date
of such issuance or denial. Such notice shall include the date of the
issuance or denial and indicate where copies of the permit, if issued,
may be obtained.
(d) Any permit shall be subject to modification, suspension, or
revocation by the director in whole or in part in accordance with these
regulations and the terms of such permits. The permittee shall be given
written notice by registered mail, return receipt requested, of any
proposed modification, suspension, or revocation. Such notice shall
specify:
(1) The action proposed to be taken along with a summary of the
reasons therefor;
(2) In accordance with 5 U.S.C. 558, the steps which the permittee
may take to demonstrate or achieve compliance with all lawful
requirements; and
(3) That the permittee is entitled to a hearing thereon if a written
request for such a hearing is received by the Director within 10 days
after receipt of the aforesaid notice or such other later date as may be
specified in the notice to the permittee. The time and place of the
hearing, if requested by the permittee, shall be determined by the
director and a written notice thereof given to the permittee by
registered mail, return receipt requested, not less than 15 days prior
to the date of hearing specified. The director may, in his discretion,
allow participation at the hearing by interested members of the public.
The permittee and other parties participating may submit all relevant
material, data, views, comments, arguments, and exhibits at the hearing.
A summary record shall be kept of any such hearing.
(e) The Director shall make a decision regarding the proposed
modification, suspension, or revocation, as soon as practicable after
the close of the hearing, or if no hearing is held, as
[[Page 23]]
soon as practicable after the close of the 10 day period during which a
hearing could have been requested. Notice of the modification,
suspension, or revocation shall be published in the Federal Register
within 10 days from the date of the Director's decision. In no event
shall the proposed action take effect until notice of the Director's
decision is published in the Federal Register.
Sec.18.34 Guidelines for use in safely deterring polar bears.
(a) These guidelines are intended for use in safely deterring polar
bears in the wild. They provide acceptable types of deterrence actions
that any person, or their employee, or their agent, can use to deter a
polar bear from damaging private property; or that any person can use to
deter a polar bear from endangering personal safety; or that a
government employee can use to deter a polar bear from damaging public
property, and not cause the serious injury or death of a polar bear.
Anyone acting in such a manner and conducting activities that comply
with the guidelines in this subpart does not need authorization under
the MMPA to conduct such deterrence. Furthermore, actions consistent
with these guidelines do not violate the take prohibitions of the MMPA
or this part. A Federal, State or local government official or employee
may take a polar bear in the course of his duties as an official or
employee, as long as such taking is accomplished in accordance with
Sec.18.22 of this part.
(b) There are two types of deterrence measures that a person, or
their employee, or their agent could follow to nonlethally deter a polar
bear. Each type of measure includes a suite of appropriate actions that
the public may use.
(1) Passive deterrence measures. Passive deterrence measures are
those that prevent polar bears from gaining access to property or
people. These measures provide for human safety and do not increase the
risk of serious injury or death of a polar bear. They include:
(i) Rigid fencing. Rigid fencing and other fixed barriers such as
gates and fence skirting can be used around buildings or areas to limit
bears from accessing community or industrial sites and buildings.
Fencing areas 5 acres (2 ha) and smaller can be used to limit human-bear
interactions. Industry standard chain-link fencing material can be used.
Chain-link fencing can be placed around buildings on pilings as fence
skirting to limit access of bears underneath the buildings.
(ii) Bear exclusion cages. Bear exclusion cages provide a protective
shelter for people in areas frequented by bears. Cages erected at
building entry and exit points exclude polar bears from the immediate
area and allow safe entry and exit for persons gaining access to, or
leaving, a building should a polar bear be in the vicinity.
Additionally, they provide an opportunity for people exiting a building
to conduct a visual scan upon exit. Such a scan is especially important
in areas where buildings are constructed above ground level due to
permafrost because bears may be resting underneath. These cages can be
used at homes or industrial facilities to deter bears as well. Cages can
be used in remote areas where bear use is not known, and along bear
travel corridors, e.g., within 0.5 mile from coastline, to deter bears
from facilities. Cages must be no smaller than 4 ft (width) by 4 ft
(length) by 8 ft (height). Bars must be no smaller than 1 inch wide.
Distance between bars must be no more than 4 inches clear on stairways
and landings or when otherwise attached to a habitable structure; they
may be no more than 5 inches clear for use in cages not attached to any
habitable structure. A 4-inch distance between the bars would be
sufficient to prevent a bear from reaching through, while providing
visible space between bars. The ceiling of the cage must be enclosed.
(iii) Bear-resistant garbage containers. Bear-resistant garbage
containers prevent bears from accessing garbage as a food source and
limit polar bears from becoming food-conditioned or habituated to people
and facilities. The absence of habituation further reduces the potential
for bear-human interactions. Bear-resistant garbage cans and garbage
bins are manufactured by various companies and in various sizes.
Commercially designed residential
[[Page 24]]
bear-resistant containers (32-130 gallons) can be used. Two- to 6-cubic
yard containers can be specifically designed by commercial vendors as
bear-proof containers or have industry-standard lid locks to prohibit
bear entry, depending on the need and location. For remote seasonal
camps, garbage can be temporarily stored in steel drums secured with
locking rings and a gasket, and removed from the site when
transportation is available. Larger garbage containers, such as
dumpsters or ``roll-offs'' (20 to 40 cubic yards), can limit bear-human
interactions when the containers have bear-proof lids. Lids must be
constructed of heavy steel tubing or similarly constructed with heavy
expanded metal.
(2) Preventive deterrence measures. Preventive deterrence measures
are those that can dissuade a polar bear from initiating an interaction
with property or people. These measures provide for safe human use and
do not increase the risk of serious injury or death of a polar bear.
These are:
(i) Acoustic devices. Acoustic deterrent devices may be used to
create an auditory disturbance causing polar bears to move away from the
affected area. The reasonable use of loud noises, e.g., vehicle engines,
automobile sirens or horns, and air-horns, where such auditory stimuli
could startle a bear and disrupt its approach to property or people, is
authorized. This authorization is limited to deterrent devices with a
sound strength of no greater than 140 dB SPL to be deployed for no more
than a 30-second continuous time interval. The use of commercially
available air horns or other audible products used as perimeter alarms,
which create sounds that fall below this upper limit, is acceptable.
(ii) Vehicle or boat deterrence. Patrolling the periphery of a
compound or encampment using a vehicle, such as a truck or all-terrain
vehicle (e.g., a snowmobile or a four wheeler), and deterring, but not
chasing, polar bears with engine noise, or by blocking their approach
without making a physical contact with the animal, is an acceptable
preventive deterrence. Similarly patrolling an area in a small boat
using similar methods is acceptable.
(c) The deterrence guidelines are passive or preventive in nature.
Any action to deter polar bears that goes beyond these specific measures
could result in a taking and, unless otherwise exempted under the MMPA,
would require separate authorization. The Service acknowledges that
there will be numerous new techniques developed, or new applications of
existing techniques, for deterring bears. The Service will work to
establish a system for evaluating new bear deterrence applications and
techniques and will update this set of guidelines with examples of
future approved methods. Deterrence actions (other than the measures
described in these guidelines) that do not result in serious injury or
death to a polar bear remain permissible for persons identified in
section 101(a)(4)(A) of the MMPA. Prior to conducting activities beyond
those specifically described in these guidelines, persons should contact
the Service's Alaska Regional Office's Marine Mammal Program for further
guidance (for the location of the Alaska Regional Office see 50 CFR
2.2(g)).
[75 FR 61637, Oct. 6, 2010]
Subpart E--Depleted Species or Stocks [Reserved]
Subpart F_Transfer of Management Authority to States
Note: Regulations governing the transfer of management authority to
States pursuant to section 109 of the Marine Mammal Protection Act for
marine mammal species under the jurisdiction of the Secretary of the
Interior are found at part 403 of this title.
[48 FR 22456, May 18, 1983]
Subpart G_Notice and Hearing on Section 103 Regulations
Source: 41 FR 5396, Feb. 6, 1976, unless otherwise noted.
Sec.18.70 Basis and purpose.
(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and
1371(b)) and these regulations authorize the Director, U.S.
[[Page 25]]
Fish and Wildlife Service, to: (1) Impose regulations governing the
taking of marine mammals incidental to commercial fishing operations;
(2) waive the moratorium and adopt regulations with respect to the
taking and importing of animals from each species of marine mammals
under his jurisdiction; and (3) prescribe regulations governing the
taking of depleted marine mammals by any Indian, Aleut or Eskimo,
respectively. In prescribing regulations to carry out the provisions of
said sections, the act refers the Director to section 103 (16 U.S.C.
1373). In accordance with section 103(d), regulations must be made on
the record after opportunity for an agency hearing on such regulations
and, in the case of a waiver, on the determination by the Director to
waive the moratorium pursuant to section 101(a)(3)(A) (16 U.S.C.
1371(a)(3)(A)).
(b) [Reserved]
Sec.18.71 Definitions.
Definitions shall be the same as in subpart A of this part except as
follows:
(a) Party means for the purposes of this subpart:
(1) The Director or his representative; or
(2) A person who has notified the Director by specified dates of his
or her intent to participate in the hearing pursuant to Sec. Sec.18.75
and 18.84(b).
(b) Presiding officer means, for the purposes of this subpart, an
administrative law judge of the Office of Hearings and Appeals appointed
in accordance with 5 U.S.C. 3105.
(c) Witness means, for the purposes of this subpart, any person who
provides direct testimony on the proposed regulations and waiver. A
person may be both a party and a witness.
Sec.18.72 Scope of regulations.
The procedural regulations in this subpart govern the practice and
procedure in hearings held under section 103(d) of the Act. These
hearings will be governed by the provisions of sections 556 and 557 of
the Administrative Procedure Act (5 U.S.C. 556 and 557). The regulations
shall be construed to secure the just, speedy, and inexpensive
determination of all issues raised with respect to any waiver and/or
regulation proposed pursuant to section 103(d) of the act in a manner
which gives full protection to the rights of all persons affected
thereby.
Sec.18.73 Burden of proof.
The proponents of the proposed regulations and waiver must
demonstrate that any taking or importation of any marine mammal under
such proposed regulations and waiver would be consistent with the act.
Sec.18.74 Notice of hearing.
(a) A notice of hearing on any proposed regulations shall be
published in the Federal Register, together with the Director's proposed
determination to waive the moratorium pursuant to section 101(a)(3)(A)
(16 U.S.C. 1371(a)(3)(A)), where applicable.
(b) The notice shall state:
(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less
than 60 days after publication of notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) The proposed regulations and waiver, where applicable, and a
summary of the statements required by section 103(d) of the Act (16
U.S.C. 1373(d));
(5) Issues of fact which may be involved in the hearing;
(6) If an Environmental Impact Statement is required, the date of
publication of the Statement and the times and place(s) where the
Statement and comments thereon may be viewed and copied;
(7) Any written advice received from the Marine Mammal Commission;
(8) The times and place(s) where records and submitted direct
testimony will be kept for public inspection, along with appropriate
references to any other documents;
(9) The final date for filing with the Director a notice of intent
to participate in the hearing pursuant to Sec.18.75;
(10) The final date for submission of direct testimony on the
proposed regulations and waiver, if applicable, and the number of copies
required;
[[Page 26]]
(11) The docket number assigned to the case which shall be used in
all subsequent proceedings; and
(12) The place and date of the prehearing conference.
Sec.18.75 Notification by interested persons.
Any person desiring to participate as a party shall notify the
Director, by certified mail, on or before the date specified in the
notice of hearing.
Sec.18.76 Presiding officer.
(a) Upon publication of the notice of hearing pursuant to Sec.
18.74, the Office of Hearings and Appeals shall appoint a presiding
officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of
interest, financial or otherwise, shall serve as presiding officer in
such proceeding.
(b) The presiding officer, in any proceeding under this subpart,
shall have power to:
(1) Change the time and place of the hearing and adjourn the
hearing;
(2) Evaluate direct testimony submitted pursuant to these
regulations, make a preliminary determination of the issues, conduct a
prehearing conference to determine the issues for the hearing agenda,
and cause to be published in the Federal Register a final hearing
agenda;
(3) Rule upon motions, requests and admissibility of direct
testimony;
(4) Administer oaths and affirmations, question witnesses and direct
witnesses to testify;
(5) Modify or waive any rule (after notice) when determining no
party will be prejudiced;
(6) Receive written comments and hear oral arguments;
(7) Render a recommended decision; and
(8) Do all acts and take all measures, including regulation of media
coverage, for the maintenance of order at and the efficient conduct of
the proceeding.
(c) In case of the absence of the original presiding officer or his
inability to act, the powers and duties to be performed by the original
presiding officer under this part in connection with a proceeding may,
without abatement of the proceeding, be assigned to any other presiding
officer by the Office of Hearings and Appeals unless otherwise ordered
by the Director.
(d) The presiding officer shall withdraw from the proceeding upon
his own motion or upon the filing of a motion by a party under Sec.
18.76(e) if he deems himself disqualified under recognized canons of
judicial ethics.
(e) A presiding officer may be requested to withdraw at any time
prior to the recommended decision. If there is filed by a party in good
faith a timely and sufficient affidavit alleging the presiding officer's
personal bias, malice, conflict of interest or other basis which might
result in prejudice to a party, the hearing shall recess. The Director
of the Office of Hearings and Appeals shall immediately determine the
matter as a part of the record and decision in the proceeding, after
making such investigation or holding such hearings, or both, as he may
deem appropriate in the circumstances.
Sec.18.77 Direct testimony submitted as written documents.
(a) Unless otherwise specified, all direct testimony, including
accompanying exhibits, must be submitted to the presiding officer in
writing no later than the dates specified in the notice of the hearing
(Sec.18.74), the prehearing order (Sec.18.82), or within 15 days
after the conclusion of the prehearing conference (Sec.18.84) as the
case may be. All direct testimony, referred to in the affidavit and made
a part thereof, must be attached to the affidavit. Direct testimony
submitted with exhibits must state the issue to which the exhibit
relates; if no such statement is made, the presiding officer shall
determine the relevance of the exhibit to the issues published in the
Federal Register.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding
and his position regarding the issues presented. If the direct testimony
is presented by a witness who is not a party, the witness shall state
his relationship to the party; and
(2) Facts that are relevant and material.
(c) The direct testimony may propose issues of fact not defined in
the notice
[[Page 27]]
of the hearing and the reason(s) why such issues should be considered at
the hearing.
(d) Ten copies of all direct testimony must be submitted unless the
notice of the hearing otherwise specifies.
(e) Upon receipt, direct testimony shall be assigned a number and
stamped with that number and the docket number.
(f) Contemporaneous with the publication of the notice of hearing,
the Director's direct testimony in support of the proposed regulations
and waiver, where applicable, shall be available for public inspection
as specified in the notice of hearing. The Director may submit
additional direct testimony during the time periods allowed for
submission of such testimony by witnesses.
Sec.18.78 Mailing address.
Unless otherwise specified in the notice of hearing, all direct
testimony shall be addressed to the Presiding Officer, c/o Director,
U.S. Fish and Wildlife Service, Washington, DC 20240. All affidavits and
exhibits shall be clearly marked with the docket number of the
proceedings.
Sec.18.79 Inspection and copying of documents.
Any document in a file pertaining to any hearing authorized by this
subpart or any document forming part of the record of such a hearing may
be inspected and/or copied in the Office of the Director, U.S. Fish and
Wildlife Service, Washington, DC 20240, unless the file is in the care
and custody of the presiding officer, in which case he shall notify the
parties as to where and when the record may be inspected.
Sec.18.80 Ex parte communications.
(a) After notice of a hearing is published in the Federal Register,
all communications, whether oral or written, involving any substantive
or procedural issue and directed either to the presiding officer or to
the Director, Deputy Director or Marine Mammal Coordinator, U.S. Fish
and Wildlife Service, without reference to these rules of procedure,
shall be deemed ex parte communications and are not to be considered
part of the record for decision.
(b) A record of oral conversations shall be made by the above
persons who are contacted. All communications shall be available for
public viewing at times and place(s) specified in the notice of hearing.
(c) The presiding officer shall not communicate with any party on
any fact in issue or on the merits of the matter unless notice and
opportunity is given for all parties to participate.
Sec.18.81 Prehearing conference.
(a) After an examination of all the direct testimony submitted
pursuant to Sec.18.77, the presiding officer shall make a preliminary
determination of issues of fact which may be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made
available at the place or places provided in the notice of the hearing
(Sec.18.74(b)(8)) at least five days before the prehearing conference
is held.
(c) The purpose of the prehearing conference shall be to enable the
presiding officer to determine, on the basis of the direct testimony
submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of
issues of fact for the hearing has omitted any significant issues;
(2) What facts are not in dispute;
(3) Which witnesses may appear at the hearing; and
(4) The nature of the interest of each party and which parties'
interests are adverse.
(d) Only parties may participate in the prehearing conference, and a
party may appear in person or be represented by counsel.
Sec.18.82 Prehearing order.
(a) After the prehearing conference, the presiding officer shall
prepare a prehearing order which shall be published in the Federal
Register within ten days after the conclusion of the conference. A copy
of the prehearing order shall be mailed to all Parties.
(b) The prehearing order shall list: (1) All the issues which the
hearing shall address, the order in which those issues shall be
presented, and the direct testimony submitted which bears on the
[[Page 28]]
issues; and (2) a final date for submission of direct testimony on
issues of fact not included in the notice of hearing if such issues are
presented. The prehearing order may also specify a final date for
submission of direct testimony to rebut testimony previously submitted
during the time specified in the notice of the hearing.
(c) The presiding officer shall publish with the prehearing order a
list of witnesses who may appear at the hearing, a list of parties, the
nature of the interest of each party, and which parties interests are
adverse on the issues presented.
(d) All parties shall be bound by the prehearing order.
Sec.18.83 Determination to cancel the hearing.
(a) If the presiding officer determines that no issues of material
fact are presented by the direct testimony submitted prior to the date
of the hearing, he may publish in the Federal Register such
determination and that on issues of material fact a hearing shall not be
held. The presiding officer may provide an opportunity for argument on
any issues of law presented by the direct testimony.
(b) Promptly after oral argument, if any, the presiding officer
shall make a recommended decision based on the record, which in this
case shall consist of the direct testimony and any oral argument
presented. He shall transmit to the Director his recommended decision,
the record and a certificate stating that the record contains all the
written direct testimony. The Director shall then make a final decision
in accordance with these regulations (Sec.18.91).
Sec.18.84 Rebuttal testimony and new issues of fact in prehearing order.
(a) Direct testimony to rebut testimony offered during the time
period specified in the notice of hearing may be submitted pursuant to
these regulations within fifteen days after the conclusion of the
prehearing conference unless the presiding officer otherwise specifies
in the prehearing order.
(b) If the prehearing order presents issues not included in the
notice of the hearing published pursuant to Sec.18.74:
(1) Any person interested in participating at the hearing on such
issues presented shall notify the Director by certified mail of an
intent to participate not later than ten days after publication of the
prehearing order. Such person may present direct testimony or cross-
examine witnesses only on such issues presented unless he previously
notified the Director pursuant to Sec.18.75; and
(2) Additional written direct testimony concerning such issues may
be submitted within the time provided in the prehearing order. Such
direct testimony will comply with the requirements of Sec.18.77.
Sec.18.85 Waiver of right to participate.
Any person who fails to notify the Director of his intent to
participate pursuant to Sec.18.75 or Sec.18.84 shall be deemed to
have waived his right to participate as a party.
Sec.18.86 Conduct of the hearing.
(a) The hearing shall be held at the time and place fixed in the
notice of hearing, unless the presiding officer changes the time or
place. If a change occurs, the presiding officer shall publish the
change in the Federal Register and shall expeditiously notify all
parties by telephone or by mail. If the change in time or place of
hearing is made less than five days before the date previously fixed for
the hearing, the presiding officer shall also announce, or cause to be
announced, the change at the time and place previously fixed for the
hearing.
(b) The presiding officer shall, at the commencement of the hearing,
introduce into the record the notice of hearing as published in the
Federal Register, all subsequent notices published in the Federal
Register, the Environmental Impact Statement if it is required and the
comments thereon and agency responses to the comments, and a list of all
parties. Direct testimony shall then be received with respect to the
matters specified in the prehearing order in such order as the presiding
officer shall announce. With respect to direct testimony submitted as
rebuttal testimony or in response to new issues
[[Page 29]]
presented by the prehearing conference, the presiding officer shall
determine the relevancy of such testimony.
(c) The hearing shall be publicly conducted and reported verbatim by
an official reporter.
(d) If a party objects to the admission or rejection of any direct
testimony or to any other ruling of the presiding officer during the
hearing, he shall state briefly the grounds of such objection, whereupon
an automatic exception will follow if the objection is overruled by the
presiding officer. The transcript shall not include argument or debate
thereon except as ordered by the presiding officer. The ruling of the
presiding officer on any objection shall be a part of the transcript and
shall be subject to review at the same time and in the same manner as
the Director's final decision. Only objections made before the presiding
officer may subsequently be relied upon in the proceedings.
(e) All motions and requests shall be addressed to, and ruled on by,
the presiding officer if made prior to his certification of the
transcript, or by the Director if made thereafter.
Sec.18.87 Direct testimony.
(a) Only direct testimony submitted as provided in these regulations
and introduced at the hearing by a witness shall be considered part of
the record. Such direct testimony, when written, shall not be read into
evidence but shall become a part of the record subject to exclusion of
irrelevant and immaterial parts thereof.
(b) The witness introducing direct testimony shall:
(1) State his name, address and occupation;
(2) State qualifications for introducing the direct testimony. If an
expert, the witness shall briefly state the scientific or technical
training which qualifies him as an expert;
(3) Identify the direct testimony previously submitted in accordance
with these regulations; and
(4) Submit to appropriate cross- and direct-examination. Cross-
examination shall be by a party whose interests are adverse on the issue
presented to the witness if the witness is a party, or to the interests
of the party who presented the witness.
(c) A party shall be deemed to have waived the right to introduce
direct-testimony if such party fails to present a witness to introduce
the direct-testimony.
(d) Official notice may be taken of such matters as are judicially
noticed by the courts of the United States. Parties shall be given
adequate notice, by the presiding officer, at the hearing, of matters so
noticed and shall be given adequate opportunity to show that such facts
are inaccurate or are erroneously noticed.
Sec.18.88 Cross-examination.
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the
examination; and
(2) Exclude cross-examination questions that are immaterial,
irrelevant or unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or
counsel shall state his name, address and occupation. If counsel cross-
examines the witness, counsel shall state for the record the authority
to act as counsel. Cross-examiners shall be assumed to be familiar with
the direct testimony.
(c) Any party or party's counsel who fails to appear at the hearing
to cross-examine an ``adverse'' witness shall be deemed to have waived
the right to cross-examine that witness.
(d) Scientific, technical or commercial publications may only be
utilized for the limited purposes of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance
with these regulations.
Sec.18.89 Oral and written arguments.
(a) The presiding officer may, in his discretion, provide for oral
argument by parties at the end of the hearing. Such argument, when
permitted, may be limited by the presiding officer to the extent
necessary for the expeditious disposition of the proceeding.
[[Page 30]]
(b) The presiding officer shall announce at the hearing a reasonable
period of time within which any party may file with the presiding
officer proposed findings and conclusions and written arguments or
briefs, which are based upon the record and citing where practicable the
relevant page or pages of the transcript. If a party filing a brief
desires the presiding officer to reconsider any objection made by such
party to a ruling of the presiding officer, he shall specifically
identify such rulings by reference to the pertinent pages of the
transcript and shall state his arguments thereon as a part of the brief.
(c) Oral or written arguments shall be limited to issues arising
from direct testimony on the record.
Sec.18.90 Recommended decision, certification of the transcript and
submission of comments on the recommended decision.
(a) Promptly after expiration of the period for receiving written
briefs, the presiding officer shall make a recommended decision based on
the record and transmit the decision to the Director. The recommended
decision shall include:
(1) A statement containing a description of the history of the
proceedings;
(2) Findings on the issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(b) The presiding officer shall also transmit to the Director the
transcript of the hearing, the original and all copies of the direct
testimony, and written comments. The presiding officer shall attach to
the original transcript of the hearing a certificate stating that to the
best of his knowledge and belief the transcript is a true transcript of
the testimony given at the hearing except in such particulars as are
specified.
(c) Upon receipt of the recommended decision, the Director shall
send a copy thereof to each party by certified mail and shall publish in
the Federal Register a notice of the receipt of the recommended decision
by the Director. The notice shall include:
(1) A summary of the recommended decision;
(2) A statement that any interested person may file written comments
on the recommended decision with the Director by a specified date;
(3) The time(s) and place(s) where the record of the hearing
transmitted to the Director pursuant to paragraph (b) of this section
may be inspected by interested persons; and
(4) The time(s) and place(s) where the recommended decision may be
inspected and/or copied by interested persons.
(d) Within thirty days after the notice of receipt of the
recommended decision has been published in the Federal Register, any
interested person may file with the Director any written comments on the
recommended decision. All comments, including recommendations from or
consultation with the Marine Mammal Commission, must be submitted during
the thirty-day period to the Director at the above address.
Sec.18.91 Director's decision.
(a) Upon receipt of the recommended decision and transcript and
after the thirty-day period for receiving written comments on the
recommended decision has passed, the Director shall make a final
decision on the proposed regulations and waiver, where applicable. The
Director's decision may affirm, modify, or set aside, in whole or in
part, the recommended findings, conclusions and decision of the
presiding officer. The Director may also remand the hearing record to
the presiding officer for a fuller development of the record.
(b) The Director's decision shall include:
(1) A statement containing a description of the history of the
proceeding;
(2) Findings on the issues of fact with the reasons therefor;
(3) Rulings on issues of law; and
(4) Any other relevant information which the Director deems
appropriate.
(c) The Director's decision shall be published in the Federal
Register. If the waiver is approved, the final adopted regulations shall
be promulgated with the decision, or as soon thereafter as practicable.
[[Page 31]]
Subpart H_Waiver of Moratorium on Taking and Importation of Individual
Marine Mammal Species
Source: 41 FR 14373, Apr. 5, 1976, unless otherwise noted.
Sec.18.92 Purpose of regulations.
The regulations contained in this subpart fulfill the requirements
of section 103 of the Act for regulations to govern the taking and
importation of each species of marine mammal for which the moratorium
imposed by section 101 has been waived.
Sec.18.93 Scope of regulations.
(a) The provisions in this subpart apply only after (1) the Director
has made a decision to waive a moratorium pursuant to section
101(a)(3)(A) of the Act, (2) the opportunity for a hearing required by
section 103(d) of the Act has been provided, and (3) the Director has
made a determination, in the case of State laws and regulations, to
approve such State laws and regulations pursuant to section 109(a)(2) of
the Act and subpart F of this part.
(b) The provisions of this subpart, unless specifically stated,
apply to all taking and/or importation of each species of marine mammal
for which the moratorium has been waived other than takings for
scientific research or public display, which are governed by Sec.18.31
of this part, or takings incidental to commercial fishing operations
which are governed by Sec.18.24.
Sec.18.94 Pacific walrus (Alaska).
(a) Pursuant to sections 101(a)(3)(A) 103, and 109 of the Marine
Mammal Protection Act of 1972, the moratorium on the hunting and killing
of Pacific walrus (Odobenus rosmarus) in waters or on lands subject to
the jurisdiction of the State of Alaska, the United States, or on the
high seas by any person, vessel, or conveyance subject to the
jurisdiction of the State of Alaska or the United States, is waived,
provided that beginning August 2, 1979 this waiver shall not be
effective, and no taking or importation under the waiver shall be
allowed, until this section is amended to establish regulations to
effectively control taking and otherwise implement the waiver.
(b) [Reserved]
[41 FR 14373, Apr. 5, 1976, as amended at 44 FR 45566, Aug. 2, 1979]
Subpart I [Reserved]
Subpart J_Nonlethal Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development, Production and Other Substantially Similar
Activities in the Beaufort Sea and Adjacent Northern Coast of Alaska
Source: 81 FR 52316, Aug. 5, 2016, unless otherwise noted.
Effective Date Note: At 81 FR 52316, Aug. 5, 2016, Subpart J was
added, effective Aug. 5, 2016, through Aug. 5, 2021.
Sec.18.121 Specified activities covered by this subpart.
Regulations in this subpart apply to the nonlethal incidental, but
not intentional, take of small numbers of polar bear and Pacific walrus
by U.S. citizens while engaged in oil and gas exploration, development,
production, and/or other substantially similar activities in the
Beaufort Sea and adjacent northern coast of Alaska. ``U.S. citizens'' is
defined in 50 CFR 18.27(c). The term ``small numbers'' is also defined
in 50 CFR 18.27(c), however, we do not rely on that definition here as
it conflates ``small numbers'' with ``negligible impacts.'' Regulations
in this subpart rely on a small numbers determination where we estimated
the likely number of takes of polar bears and Pacific walruses during
the specified activities, and evaluated if that take is small relative
to the size of the population or stock.
Sec.18.122 Specified geographic region where this subpart applies.
This subpart applies to the specified geographic region that
encompasses all Beaufort Sea waters east of a north-south line through
Point Barrow, Alaska (71[deg]23[min]29[sec] N., -156[deg]28[min]30[sec]
W., BGN 1944), and approximately 322 kilometers (km) (200 miles (mi))
north of Point
[[Page 32]]
Barrow, including all Alaska State waters and Outer Continental Shelf
(OCS) waters, and east of that line to the Canadian border.
(a) The offshore boundary of the Beaufort Sea incidental take
regulations (ITR) region will match the boundary of the Bureau of Ocean
Energy Management (BOEM) Beaufort Sea Planning area, approximately 322
km (200 mi) offshore. The onshore region is the same north/south line at
Barrow, 40.2 km (25 mi) inland and east to the Canning River.
(b) The Arctic National Wildlife Refuge is not included in the
Beaufort Sea ITR region. Figure 1 shows the area where this subpart
applies.
[GRAPHIC] [TIFF OMITTED] TR05AU16.037
Sec.18.123 Dates this subpart is in effect.
Regulations in this subpart are effective from August 5, 2016,
through August 5, 2021, for year-round oil and gas exploration,
development, production and other substantially similar activities.
Sec.18.124 Procedure to obtain a Letter of Authorization (LOA).
(a) An applicant must be a U.S. citizen as defined in Sec.
18.27(c).
(b) If an applicant proposes to conduct oil and gas industry
exploration, development, production, and/or other substantially similar
activity in the Beaufort Sea ITR region described in Sec.18.122 that
may cause the taking of Pacific walruses and/or polar bears and wants
nonlethal incidental take authorization under the regulations in this
subpart J, the applicant must apply for an LOA. The applicant must
submit the request for authorization to the Service's Alaska Region
Marine Mammals Management Office (see Sec.2.2 for address) at least 90
days prior to the start of the activity.
[[Page 33]]
(c) The request for an LOA must include the following information
and must comply with the requirements set forth in Sec.18.128:
(1) A plan of operations that describes in detail the activity
(e.g., type of project, methods, and types and numbers of equipment and
personnel, etc.), the dates and duration of the activity, and the
specific locations of and areas affected by the activity.
(2) A site-specific marine mammal monitoring and mitigation plan to
monitor and mitigate the effects of the activity on Pacific walruses and
polar bears.
(3) A site-specific Pacific walrus and polar bear safety, awareness,
and interaction plan. The plan for each activity and location will
detail the policies and procedures that will provide for the safety and
awareness of personnel, avoid interactions with Pacific walruses and
polar bears, and minimize impacts to these animals.
(4) A Plan of Cooperation (POC) to mitigate potential conflicts
between the activity and subsistence hunting, where relevant. Applicants
must provide documentation of communication with potentially affected
subsistence communities along the Beaufort Sea coast (i.e., Kaktovik,
Nuiqsut, and Barrow) and appropriate subsistence user organizations
(i.e., the Eskimo Walrus Commission or North Slope Borough) to discuss
the location, timing, and methods of activities and identify and
mitigate any potential conflicts with subsistence walrus and polar bear
hunting activities. Applicants must specifically inquire of relevant
communities and organizations if the activity will interfere with the
availability of Pacific walruses and/or polar bears for the subsistence
use of those groups. Applications for Letters of Authorization must
include documentation of all consultations with potentially affected
user groups. Documentation must include a summary of any concerns
identified by community members and hunter organizations, and the
applicant's responses to identified concerns.
Sec.18.125 How the Service will evaluate a request for a Letter
of Authorization (LOA).
(a) We will evaluate each request for an LOA based on the specific
activity and the specific geographic location. We will determine whether
the level of activity identified in the request exceeds that analyzed by
us in considering the number of animals likely to be taken and
evaluating whether there will be a negligible impact on the species or
an adverse impact on the availability of the species for subsistence
uses. If the level of activity is greater, we will reevaluate our
findings to determine if those findings continue to be appropriate based
on the greater level of activity that the applicant has requested.
Depending on the results of the evaluation, we may grant the
authorization, add further conditions, or deny the authorization.
(b) In accordance with Sec.18.27(f)(5), we will make decisions
concerning withdrawals of an LOA, either on an individual or class
basis, only after notice and opportunity for public comment.
(c) The requirement for notice and public comment in paragraph (b)
of this section will not apply should we determine that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of polar bears or Pacific walruses.
Sec.18.126 Authorized take allowed under a Letter of Authorization
(LOA).
(a) An LOA allows for the nonlethal, non-injurious, incidental, but
not intentional take by Level B harassment, as defined in Sec.18.3 and
under section 3 of the Marine Mammal Protection Act (16 U.S.C. 1371 et
seq.), of Pacific walruses and/or polar bears while conducting oil and
gas industry exploration, development, production, and/or other
substantially similar activities within the Beaufort Sea ITR region
described in Sec.18.122.
(b) Each LOA will identify terms and conditions for each activity
and location.
[[Page 34]]
Sec.18.127 Prohibited take under a Letter of Authorization (LOA).
Except as otherwise provided in this subpart, prohibited taking is
described in Sec.18.11 as well as:
(a) Intentional take, Level A harassment, as defined in section 3 of
the Marine Mammal Protection Act (16 U.S.C. 1371 et seq.), and lethal
incidental take of polar bears or Pacific walruses; and
(b) Any take that fails to comply with this subpart or with the
terms and conditions of an LOA.
Sec.18.128 Mitigation, monitoring, and reporting requirements.
(a) Mitigation measures for all Letters of Authorization (LOAs).
Holders of an LOA must implement policies and procedures to conduct
activities in a manner that minimizes to the greatest extent practicable
adverse impacts on Pacific walruses and/or polar bears, their habitat,
and the availability of these marine mammals for subsistence uses.
Adaptive management practices, such as temporal or spatial activity
restrictions in response to the presence of marine mammals in a
particular place or time or the occurrence of Pacific walruses and/or
polar bears engaged in a biologically significant activity (e.g.,
resting, feeding, denning, or nursing, among others) must be used to
avoid interactions with and minimize impacts to these animals and their
availability for subsistence uses.
(1) All holders of an LOA must:
(i) Cooperate with the Service's Marine Mammals Management Office
and other designated Federal, State, and local agencies to monitor and
mitigate the impacts of oil and gas industry activities on Pacific
walruses and polar bears.
(ii) Designate trained and qualified personnel to monitor for the
presence of Pacific walruses and polar bears, initiate mitigation
measures, and monitor, record, and report the effects of oil and gas
industry activities on Pacific walruses and/or polar bears.
(iii) Have an approved Pacific walrus and polar bear safety,
awareness, and interaction plan on file with the Service's Marine
Mammals Management Office and onsite, and provide polar bear awareness
training to certain personnel. Interaction plans must include:
(A) The type of activity and where and when the activity will occur
(i.e., a summary of the plan of operation);
(B) A food, waste, and other ``bear attractants'' management plan;
(C) Personnel training policies, procedures, and materials;
(D) Site-specific walrus and polar bear interaction risk evaluation
and mitigation measures;
(E) Walrus and polar bear avoidance and encounter procedures; and
(F) Walrus and polar bear observation and reporting procedures.
(2) All applicants for an LOA must contact affected subsistence
communities and hunter organizations to discuss potential conflicts
caused by the activities and provide the Service documentation of
communications as described in Sec.18.124.
(b) Mitigation measures for onshore activities. Holders of an LOA
must undertake the following activities to limit disturbance around
known polar bear dens:
(1) Attempt to locate polar bear dens. Holders of an LOA seeking to
carry out onshore activities in known or suspected polar bear denning
habitat during the denning season (November-April) must make efforts to
locate occupied polar bear dens within and near areas of operation,
utilizing appropriate tools, such as forward-looking infrared (FLIR)
imagery and/or polar bear scent-trained dogs. All observed or suspected
polar bear dens must be reported to the Service prior to the initiation
of activities.
(2) Observe the exclusion zone around known polar bear dens.
Operators must observe a 1.6-km (1-mi) operational exclusion zone around
all known polar bear dens during the denning season (November-April, or
until the female and cubs leave the areas). Should previously unknown
occupied dens be discovered within 1 mi of activities, work must cease
and the Service contacted for guidance. The Service will evaluate these
instances on a case-by-case basis to determine the appropriate action.
Potential actions may range from cessation or modification of work to
conducting additional monitoring, and the holder of the authorization
must comply with any additional measures specified.
[[Page 35]]
(3) Use the den habitat map developed by the USGS. A map of
potential coastal polar bear denning habitat can be found at: http://
alaska.usgs.gov/science/biology/polar_bears/denning.html. This measure
ensures that the location of potential polar bear dens is considered
when conducting activities in the coastal areas of the Beaufort Sea.
(4) Polar bear den restrictions. Restrict the timing of the activity
to limit disturbance around dens.
(c) Mitigation measures for operational and support vessels. (1)
Operational and support vessels must be staffed with dedicated marine
mammal observers to alert crew of the presence of walruses and polar
bears and initiate adaptive mitigation responses.
(2) At all times, vessels must maintain the maximum distance
possible from concentrations of walruses or polar bears. Under no
circumstances, other than an emergency, should any vessel approach
within an 805-m (0.5-mi) radius of walruses or polar bears observed on
land or ice.
(3) Vessel operators must take every precaution to avoid harassment
of concentrations of feeding walruses when a vessel is operating near
these animals. Vessels should reduce speed and maintain a minimum 805-m
(0.5-mi) operational exclusion zone around feeding walrus groups.
Vessels may not be operated in such a way as to separate members of a
group of walruses from other members of the group. When weather
conditions require, such as when visibility drops, vessels should adjust
speed accordingly to avoid the likelihood of injury to walruses.
(4) Vessels bound for the Beaufort Sea ITR Region may not transit
through the Chukchi Sea prior to July 1. This operating condition is
intended to allow walruses the opportunity to move through the Bering
Strait and disperse from the confines of the spring lead system into the
Chukchi Sea with minimal disturbance. It is also intended to minimize
vessel impacts upon the availability of walruses for Alaska Native
subsistence hunters. Exemption waivers to this operating condition may
be issued by the Service on a case-by-case basis, based upon a review of
seasonal ice conditions and available information on walrus and polar
bear distributions in the area of interest.
(5) All vessels must avoid areas of active or anticipated walrus or
polar bear subsistence hunting activity as determined through community
consultations.
(6) In association with marine activities, we may require trained
marine mammal monitors on the site of the activity or on board drill
ships, drill rigs, aircraft, icebreakers, or other support vessels or
vehicles to monitor the impacts of Industry's activity on polar bear and
Pacific walruses.
(d) Mitigation measures for aircraft. (1) Operators of support
aircraft should, at all times, conduct their activities at the maximum
distance possible from concentrations of walruses or polar bears.
(2) Under no circumstances, other than an emergency, should aircraft
operate at an altitude lower than 457 m (1,500 ft) within 805 m (0.5 mi)
of walruses or polar bears observed on ice or land. Helicopters may not
hover or circle above such areas or within 805 m (0.5 mile) of such
areas. When weather conditions do not allow a 457-m (1,500-ft) flying
altitude, such as during severe storms or when cloud cover is low,
aircraft may be operated below this altitude. However, when weather
conditions necessitate operation of aircraft at altitudes below 457 m
(1,500 ft), the operator must avoid areas of known walrus and polar bear
concentrations and should take precautions to avoid flying directly over
or within 805 m (0.5 mile) of these areas.
(3) Plan all aircraft routes to minimize any potential conflict with
active or anticipated walrus or polar bear hunting activity as
determined through community consultations.
(e) Mitigation measures for sound-producing offshore activities. Any
offshore activity expected to produce pulsed underwater sounds with
received sound levels =160 dB re 1 [micro]Pa will be required
to establish and monitor acoustically verified mitigation zones
surrounding the sound source and implement adaptive mitigation measures
as follows:
(1) Mitigation zones. (i) A walrus monitoring zone is required where
the received pulsed sound level would be =160
[[Page 36]]
dB re 1 [micro]Pa. Walruses in this zone are assumed to experience Level
B take.
(ii) A walrus mitigation zone is required where the received pulsed
sound level would be =180 dB re 1 [micro]Pa.
(iii) A walrus or polar bear mitigation zone is required where the
received pulsed sound level would be =190 dB re 1 [micro]Pa.
(2) Adaptive mitigation measures.
(i) Ramp-up procedures. For all sound sources, including sound
source testing, the following sound ramp-up procedures must be used to
allow walruses and polar bears to depart the mitigation zones:
(A) Visually monitor the =180 dB re 1 [micro]Pa and
=190 dB re 1 [micro]Pa mitigation zones and adjacent waters
for walruses and polar bears for at least 30 minutes before initiating
ramp-up procedures. If no walruses or polar bears are detected, ramp-up
procedures may begin. Do not initiate ramp-up procedures when mitigation
zones are not observable (e.g., at night, in fog, during storms or high
sea states, etc.).
(B) Initiate ramp-up procedures by activating a single, or least
powerful, sound source, in terms of energy output and/or volume
capacity.
(C) Continue ramp-up by gradually increasing sound output over a
period of at least 20 minutes, but no longer than 40 minutes, until the
desired operating level of the sound source is obtained.
(ii) Power down. Immediately power down a sound source when:
(A) One or more walruses is observed or detected within the area
delineated by the pulsed sound =180 dB re 1 [micro]Pa walrus
mitigation zone; and
(B) One or more walruses or polar bears are observed or detected
within the area delineated by the pulsed sound =190 dB re 1
[micro]Pa walrus or polar bear mitigation zone.
(iii) Shut down. (A) If the power down operation cannot reduce the
received pulsed sound level to <180 dB re 1 [micro]Pa (walrus) or <190
dB re 1 [micro]Pa (walrus or polar bear), the operator must immediately
shut down the sound source.
(B) If observations are made or credible reports are received that
one or more walruses or polar bears within the area of the sound source
activity are believed to be in an injured or mortal state, or are
indicating acute distress due to received sound, the sound source must
be immediately shut down and the Service contacted. The sound source
will not be restarted until review and approval has been given by the
Service. The ramp-up procedures must be followed when restarting.
(f) Mitigation measures for the subsistence use of walruses and
polar bears. Holders of Letters of Authorization must conduct their
activities in a manner that, to the greatest extent practicable,
minimizes adverse impacts on the availability of Pacific walruses and
polar bears for subsistence uses.
(1) Community consultation. Prior to receipt of an LOA, applicants
must consult with potentially affected communities and appropriate
subsistence user organizations to discuss potential conflicts with
subsistence walrus and polar bear hunting caused by the location,
timing, and methods of operations and support activities (see Sec.
18.124 for details). If community concerns suggest that the activities
may have an adverse impact on the subsistence uses of these species, the
applicant must address conflict avoidance issues through a POC as
described in paragraph (f)(2) of this section.
(2) Plan of Cooperation (POC). When appropriate, a holder of an LOA
will be required to develop and implement a Service-approved POC. The
POC must include:
(i) A description of the procedures by which the holder of the LOA
will work and consult with potentially affected subsistence hunters; and
(ii) A description of specific measures that have been or will be
taken to avoid or minimize interference with subsistence hunting of
walruses and polar bears and to ensure continued availability of the
species for subsistence use.
(iii) The Service will review the POC to ensure that any potential
adverse effects on the availability of the animals are minimized. The
Service will reject POCs if they do not provide adequate safeguards to
ensure the least practicable adverse impact on the availability of
walruses and polar bears for subsistence use.
(g) Monitoring requirements. Holders of an LOA will be required to:
[[Page 37]]
(1) Develop and implement a site-specific, Service-approved marine
mammal monitoring and mitigation plan to monitor and evaluate the
effectiveness of mitigation measures and the effects of activities on
walruses, polar bears, and the subsistence use of these species.
(2) Provide trained, qualified, and Service-approved onsite
observers to carry out monitoring and mitigation activities identified
in the marine mammal monitoring and mitigation plan.
(3) For offshore activities, provide trained, qualified, and
Service-approved observers on board all operational and support vessels
to carry out monitoring and mitigation activities identified in the
marine mammal monitoring and mitigation plan. Offshore observers may be
required to complete a marine mammal observer training course approved
by the Service.
(4) Cooperate with the Service and other designated Federal, State,
and local agencies to monitor the impacts of oil and gas activities on
walruses and polar bears. Where information is insufficient to evaluate
the potential effects of activities on walruses, polar bears, and the
subsistence use of these species, holders of an LOA may be required to
participate in joint monitoring and/or research efforts to address these
information needs and ensure the least practicable impact to these
resources.
(h) Reporting requirements. Holders of an LOA must report the
results of monitoring and mitigation activities to the Service's Marine
Mammals Management Office via email at: [email protected].
(1) In-season monitoring reports--(i) Activity progress reports.
Holders of an LOA must:
(A) Notify the Service at least 48 hours prior to the onset of
activities;
(B) Provide the Service weekly progress reports of any significant
changes in activities and/or locations; and
(C) Notify the Service within 48 hours after ending of activities.
(ii) Walrus observation reports. Holders of an LOA must report, on a
weekly basis, all observations of walruses during any Industry activity.
Upon request, monitoring report data must be provided in a common
electronic format (to be specified by the Service). Information in the
observation report must include, but is not limited to:
(A) Date, time, and location of each walrus sighting;
(B) Number of walruses;
(C) Sex and age (if known);
(D) Observer name and contact information;
(E) Weather, visibility, sea state, and sea-ice conditions at the
time of observation;
(F) Estimated range at closest approach;
(G) Industry activity at time of sighting;
(H) Behavior of animals sighted;
(I) Description of the encounter;
(J) Duration of the encounter; and
(K) Mitigation actions taken.
(iii) Polar bear observation reports. Holders of an LOA must report,
within 48 hours, all observations of polar bears and potential polar
bear dens, during any Industry activity. Upon request, monitoring report
data must be provided in a common electronic format (to be specified by
the Service). Information in the observation report must include, but is
not limited to:
(A) Date, time, and location of observation;
(B) Number of bears;
(C) Sex and age (if known);
(D) Observer name and contact information;
(E) Weather, visibility, sea state, and sea-ice conditions at the
time of observation;
(F) Estimated closest distance of bears from personnel and
facilities;
(G) Industry activity at time of sighting;
(H) Possible attractants present;
(I) Bear behavior;
(J) Description of the encounter;
(K) Duration of the encounter; and
(L) Mitigation actions taken.
(2) Notification of LOA incident report. Holders of an LOA must
report, as soon as possible, but within 48 hours, all LOA incidents
during any Industry activity. An LOA incident is any situation when
specified activities exceed the authority of an LOA, when a mitigation
measure was required but not
[[Page 38]]
enacted, or when injury or death of a walrus or polar bear occurs.
Reports must include:
(i) All information specified for an observation report;
(ii) A complete detailed description of the incident; and
(iii) Any other actions taken.
(3) Final report. The results of monitoring and mitigation efforts
identified in the marine mammal monitoring and mitigation plan must be
submitted to the Service for review within 90 days of the expiration of
an LOA, or for production LOAs, an annual report by January 15th of each
calendar year. Upon request, final report data must be provided in a
common electronic format (to be specified by the Service). Information
in the final (or annual) report must include, but is not limited to:
(i) Copies of all observation reports submitted under the LOA;
(ii) A summary of the observation reports;
(iii) A summary of monitoring and mitigation efforts including
areas, total hours, total distances, and distribution;
(iv) Analysis of factors affecting the visibility and detectability
of walruses and polar bears during monitoring;
(v) Analysis of the effectiveness of mitigation measures;
(vi) Analysis of the distribution, abundance, and behavior of
walruses and/or polar bears observed; and
(vii) Estimates of take in relation to the specified activities.
Sec.18.129 Information collection requirements.
(a) We may not conduct or sponsor and a person is not required to
respond to a collection of information unless it displays a currently
valid Office of Management and Budget (OMB) control number. OMB has
approved the collection of information contained in this subpart and
assigned OMB control number 1018-0070. You must respond to this
information collection request to obtain a benefit pursuant to section
101(a)(5) of the Marine Mammal Protection Act. We will use the
information to:
(1) Evaluate the application and determine whether or not to issue
specific Letters of Authorization; and
(2) Monitor impacts of activities and effectiveness of mitigation
measures conducted under the Letters of Authorization.
(b) Comments regarding the burden estimate or any other aspect of
this requirement must be submitted to the Information Collection
Clearance Officer, U.S. Fish and Wildlife Service, at the address listed
in 50 CFR 2.1.
Subpart K_Nonlethal Taking of Marine Mammals Incidental to Oil and Gas
Activities in Cook Inlet, Alaska
Effective Date Note: At 84 FR 37745, Aug. 1, 2019, Subpart K was
added, effective Aug. 1, 2019 through Aug. 1, 2024.
Sec.18.130 Specified activities covered by this subpart.
Regulations in this subpart apply to the nonlethal incidental, but
not intentional, take, as defined in 50 CFR 18.3 and under the Marine
Mammal Protection Act (16 U.S.C. 1362), of small numbers of northern sea
otters (Enhydra lutris kenyoni; hereafter ``otter,'' ``otters,'' or
``sea otters'') by Hilcorp Alaska, LLC, Harvest Alaska, LLC, and the
Alaska Gasline Development Corporation while engaged in activities
associated with or in support of oil and gas exploration, development,
production, and transportation in Cook Inlet, Alaska.
Sec.18.131 Specified geographic region where this subpart applies.
(a) The specified geographic region is Cook Inlet, Alaska, south of
a line from the Susitna River Delta to Point Possession (approximately
61[deg]15[min]54[sec] N, 150[deg]41[min]07[sec] W, to
61[deg]02[min]19[sec] N, 150[deg]23[min]48[sec] W, WGS 1984) and north
of a line from Rocky Cove to Coal Cove (approximately
59[deg]25[min]56[sec] N, 153[deg]44[min]25[sec] W and
59[deg]23[min]48[sec] N, 151[deg]54[min]28[sec] W, WGS 1984), excluding
Ursus Cove, Iniskin Bay, Iliamna Bay, and Tuxedni Bay.
(b) The geographic area of this incidental take regulation (ITR)
includes all Alaska State waters and Outer Continental Shelf Federal
waters within this area as well as all adjacent rivers,
[[Page 39]]
estuaries, and coastal lands where sea otters may occur, except for
those areas explicitly excluded in paragraph (a) of this section.
(c) Map of the Cook Inlet ITR region follows:
[GRAPHIC] [TIFF OMITTED] TR01AU19.000
Sec.18.132 Dates this subpart is in effect.
Regulations in this subpart are effective from August 1, 2019, to
August 1, 2024.
Sec.18.133 Authorized take allowed under a Letter of Authorization
(LOA).
(a) To incidentally take marine mammals pursuant to the regulations
in this subpart,, Hilcorp Alaska, LLC, Harvest Alaska, LLC, or the
Alaska Gasline Development Corporation (hereafter ``the applicant'')
must apply for and obtain an LOA in accordance with Sec. Sec.18.27(f)
and 18.134. The applicant is a U.S. citizen as defined in Sec.
18.27(c).
(b) An LOA allows for the nonlethal, incidental, but not intentional
take by harassment of sea otters during activities specified in Sec.
18.130 within the Cook Inlet ITR region described in Sec.18.131.
(c) Each LOA will set forth:
(1) Permissible methods of incidental take;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(d) Issuance of the LOA(s) must be based on a determination that the
level
[[Page 40]]
of take will be consistent with the findings made for the total
allowable take under these regulations in this subpart.
Sec.18.134 Procedure to obtain a Letter of Authorization (LOA).
(a) The applicant must submit the request for authorization to the
U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals
Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage,
Alaska, 99503, at least 90 days prior to the start of the proposed
activity.
(b) The request for an LOA must comply with the requirements set
forth in Sec. Sec.18.137 through 18.139 and must include the following
information:
(1) A plan of operations that describes in detail the proposed
activity (type of project, methods, and types and numbers of equipment
and personnel, etc.), the dates and duration of the activity, and the
specific locations of and areas affected by the activity. Changes to the
proposed project without prior authorization may invalidate an LOA.
(2) A site-specific marine mammal monitoring and mitigation plan to
monitor and mitigate the effects of the activity on sea otters.
(3) An assessment of potential effects of the proposed activity on
subsistence hunting of sea otters.
(i) The applicant must communicate with potentially affected
subsistence communities along the Cook Inlet coast and appropriate
subsistence user organizations to discuss the location, timing, and
methods of proposed activities and identify any potential conflicts with
subsistence hunting activities.
(ii) The applicant must specifically inquire of relevant communities
and organizations if the proposed activity will interfere with the
availability of sea otters for the subsistence use of those groups.
(iii) The applicant must include documentation of consultations with
potentially affected user groups. Documentation must include a list of
persons contacted, a summary of input received, any concerns identified
by community members and hunter organizations, and the applicant's
responses to identified concerns.
(iv) If any concerns regarding effects of the activity on sea otter
subsistence harvest are identified, the applicant will provide to the
Service a Plan of Cooperation (POC) with specific steps for addressing
those concerns, including a schedule for ongoing community engagement
and suggested measures that will be implemented to mitigate any
potential conflicts with subsistence hunting.
Sec.18.135 How the Service will evaluate a request for a Letter
of Authorization (LOA).
(a) The Service will evaluate each request for an LOA to determine
if the proposed activity is consistent with the analysis and findings
made for these regulations. Depending on the results of the evaluation,
we may grant the authorization, add further conditions, or deny the
authorization.
(b) Once issued, the Service may withdraw or suspend an LOA if the
project activity is modified in a way that undermines the results of the
previous evaluation, if the conditions of the regulations in this
subpart are not being substantially complied with, or if the taking
allowed is or may be having more than a negligible impact on the
affected stock of sea otters or an unmitigable adverse impact on the
availability of sea otters for subsistence uses.
(c) The Service will make decisions concerning withdrawals of an
LOA, either on an individual or class basis, only after notice and
opportunity for public comment in accordance with Sec.18.27(f)(5). The
requirement for notice and public comment will not apply should we
determine that an emergency exists that poses a significant risk to the
well-being of the species or stocks of sea otters.
Sec.18.136 Prohibited take under a Letter of Authorization (LOA).
(a) Except as otherwise provided in this subpart, prohibited taking
is described in Sec.18.11 as well as: Intentional take, lethal
incidental take of sea otters, and any take that fails to comply with
this subpart or with the terms and conditions of an LOA.
[[Page 41]]
(b) If project activities cause unauthorized take, the applicant
must take the following actions:
(1) Cease activities immediately (or reduce activities to the
minimum level necessary to maintain safety) and report the details of
the incident to the Service MMM within 48 hours; and
(2) Suspend further activities until the Service has reviewed the
circumstances, determined whether additional mitigation measures are
necessary to avoid further unauthorized taking, and notified the
applicant that it may resume project activities.
Sec.18.137 Mitigation.
(a) Mitigation measures for all LOAs. The applicant, including all
personnel operating under the applicant's authority (or ``operators,''
including contractors, subcontractors, and representatives) must
undertake the following activities to avoid and minimize take of sea
otters by harassment.
(1) Implement policies and procedures to avoid interactions with and
minimize to the greatest extent practicable adverse impacts on sea
otters, their habitat, and the availability of these marine mammals for
subsistence uses.
(2) Develop avoidance and minimization policies and procedures, in
cooperation with the Service, that include temporal or spatial activity
restrictions to be used in response to the presence of sea otters
engaged in a biologically significant activity (e.g., resting, feeding,
hauling out, mating, or nursing).
(3) Cooperate with the Service's MMM Office and other designated
Federal, State, and local agencies to monitor and mitigate the impacts
of oil and gas industry activities on sea otters.
(4) Allow Service personnel or the Service's designated
representative to board project vessels or visit project work sites for
the purpose of monitoring impacts to sea otters and subsistence uses of
sea otters at any time throughout project activities so long as it is
safe to do so.
(5) Designate trained and qualified protected species observers
(PSOs) to monitor for the presence of sea otters, initiate mitigation
measures, and monitor, record, and report the effects of the activities
on sea otters. The applicant is responsible for providing training to
PSOs to carry out mitigation and monitoring.
(6) Have an approved mitigation and monitoring plan on file with the
Service MMM and onsite that includes the following information:
(i) The type of activity and where and when the activity will occur
(i.e., a summary of the plan of operation);
(ii) Personnel training policies, procedures, and materials;
(iii) Site-specific sea otter interaction risk evaluation and
mitigation measures;
(iv) Sea otter avoidance and encounter procedures; and
(v) Sea otter observation and reporting procedures.
(7) Contact affected subsistence communities and hunter
organizations to identify any potential conflicts that may be caused by
the proposed activities and provide the Service documentation of
communications as described in Sec.18.134.
(b) Mitigation measures for in-water noise-generating work. The
applicant must carry out the following measures:
(1) Mitigation zones. Establish mitigation zones for project
activities that generate underwater sound levels =160
decibels (dB) between 125 hertz (Hz) and 38 kilohertz (kHz) (hereafter
``noise-generating work'').
(i) All dB levels are referenced to 1 [micro]Pa for underwater
sound. All dB levels herein are dBRMS unless otherwise noted;
dBRMS refers to the root-mean-squared dB level, the square
root of the average of the squared sound pressure level, typically
measured over 1 second.
(ii) Mitigation zones must include all in-water areas where work-
related sound received by sea otters will match the levels and
frequencies in paragraph (b)(1) of this section. Mitigation zones will
be designated as follows:
(A) An Exclusion Zone (EZ) will be established throughout all areas
where sea otters may be exposed to sound levels capable of causing Level
A take as shown in the table in paragraph (b)(1)(iii) of this section.
(B) The Safety Zone (SZ) is an area larger than the EZ and will
include all
[[Page 42]]
areas within which sea otters may be exposed to noise levels that will
likely result in Level B take as shown in the table in paragraph
(b)(1)(iii) of this section.
(C) Both the EZ and SZ will be centered on the sound source. The
method of estimation and minimum radius of each zone will be specified
in any LOA issued under Sec.18.135 and will be based on onsite sound
source verification (SSV), if available, or the best available science.
(D) Onsite SSV testing will be conducted prior to two-dimensional
(2D) and three-dimensional (3D) seismic surveys.
(E) Seismic surveys (2D and 3D) must be conducted using equipment
that generates the lowest practicable levels of underwater sound within
the range of frequencies audible to sea otters.
(iii) Summary of acoustic exposure thresholds for take of sea otters
from underwater sound in the frequency range 125 Hz-38 kHz:
Table 1 to Sec. 18.137(b)(1)(iii)
----------------------------------------------------------------------------------------------------------------
Injury (Level A) threshold \1\ Disturbance (Level B) threshold
Marine mammals -------------------------------------------------------------------------------
Impulsive Non-impulsive All
----------------------------------------------------------------------------------------------------------------
Sea otters...................... 232 dB peak; 203 dB 219 dB SELCUM...... 160 dBRMS.
SELCUM.
----------------------------------------------------------------------------------------------------------------
\1\ Based on acoustic criteria for otariid pinnipeds from the National Marine Fisheries Service. Sound source
types are separated into impulsive (e.g., seismic, pipe driving, sub-bottom profiler) and non-impulsive
(drilling, water jet) and require estimation of the distance to the peak received sound pressure level (peak)
and 24-hr cumulative sound exposure level (SELCUM).
(2) Monitoring. Designate trained and qualified PSOs or
``observers'' to monitor for the presence of sea otters in mitigation
zones, initiate mitigation measures, and record and report the effects
of project work on otters for all noise-generating work.
(3) Mitigation measures for sea otters in mitigation zones. The
following actions will be taken in response to otters in mitigation
zones:
(i) Sea otters that are under no visible distress within the SZ must
be monitored continuously. Power down, shut down, or maneuver away from
the sea otter if practicable to reduce sound received by the animal.
Maintain 100-m (301-ft) separation distance whenever possible. Exposures
in this zone are counted as one Level B take per animal per day.
(ii) When sea otters are observed within or approaching the EZ,
noise-generating work as defined in paragraph (b)(1) of this section
must be immediately shut down or powered down to reduce the size of the
zone sufficiently to exclude the animal from the zone. Vessel speed or
course may be altered to achieve the same task. Exposures in this zone
are counted as one Level A take per animal per day.
(iii) When sea otters are observed in visible distress (for example,
vocalizing, repeatedly spy-hopping, or fleeing), noise-generating work
as defined in paragraph (b)(1) of this section must be immediately shut
down or powered down to reduce the size of the zone sufficiently to
exclude the animal from the zone.
(iv) Following a shutdown, the noise-generating activity will not
resume until the sea otter has cleared the EZ. The animal will be
considered to have cleared the EZ if it is visually observed to have
left the EZ or has not been seen within the EZ for 30 minutes or longer.
(4) Ramp-up procedures. Prior to noise-generating work, a ``ramp-
up'' procedure must be used to increase the levels of underwater sound
from noise-generating work at a gradual rate.
(i) Seismic surveys: A ramp-up will be used at the initial start of
airgun operations and prior to restarting after any period greater than
10 minutes without airgun operations, including a power-down or shutdown
event (described in paragraphs (b)(6) and (7) of this section). During
geophysical work, the number and total volume of airguns will be
increased incrementally until the full volume is achieved. The rate of
ramp-up will be no more than 6 dB per 5-minute period. Ramp-up will
begin with the smallest gun in the array that is being used for all
airgun array configurations. During the ramp-up, the
[[Page 43]]
applicable mitigation zones (based on type of airgun and sound levels
produced) must be maintained. It will not be permissible to ramp up the
full array from a complete shutdown in thick fog or at other times when
the outer part of the EZ is not visible. Ramp-up of the airguns will not
be initiated if a sea otter is sighted within the EZ at any time.
(ii) Pile/pipe driving: A ramp-up of the hammering will precede each
day's pipe/pile driving activities or if pipe/pile driving has ceased
for more than 1 hour. The EZ will be determined clear of sea otters 30
minutes prior to a ramp-up to ensure no sea otters are within or
entering the EZ. Initial hammering starts will not begin during periods
of poor visibility (e.g., night, fog, wind) when the entire EZ is not
visible. The ramp-up procedure for impact hammers involves initially
starting with three soft strikes at 40 percent energy, followed by a 1-
minute waiting period followed by two subsequent three-strike sets. For
vibratory hammers, initial noise generation will be limited to 15
seconds at a reduced energy level, followed by a 1-minute waiting
period. This cycle will be repeated two additional times. Monitoring
will occur during all hammering sessions.
(iii) All activities: Any shutdown due to sea otters sighted within
the EZ must be followed by a 30-minute all-clear period and then a
standard full ramp-up. Any shutdown for other reasons resulting in the
cessation of the sound source for a period greater than 30 minutes must
also be followed by full ramp-up procedures. If otters are observed
during a ramp-up effort or prior to startup, a PSO must record the
observation and monitor the animal's position until it moves out of
visual range. Noise-generating work may commence if, after a full and
gradual effort to ramp up the underwater sound level, the otter is
outside of the EZ and does not show signs of visible distress (for
example, vocalizing, repeatedly spy-hopping, or fleeing).
(5) Startup procedures. (i) Visual monitoring must begin at least 30
minutes prior to, and continue throughout, ramp-up efforts.
(ii) Visual monitoring must continue during all noise-generating
work occurring in daylight hours.
(6) Power-down procedures. A power-down procedure involves reducing
the volume of underwater sound generated to prevent an otter from
entering the EZ.
(i) Whenever a sea otter is detected outside the EZ and, based on
its position and motion relative to the noise-generating work, appears
likely to enter the EZ but has not yet done so, operators may reduce
power to noise-generating equipment as an alternative to a shutdown.
(ii) Whenever a sea otter is detected in the SZ, an operator may
power down when practicable to reduce Level B take.
(iii) During a power-down of seismic work, the number of airguns in
use may be reduced, such that the EZ is reduced, making the sea otters
unlikely to enter the EZ. A mitigation airgun (airgun of small volume
such as the 10-in\3\ gun) will be operated continuously during a power-
down of seismic work.
(iv) After a power-down, noise-generating work will not resume until
the sea otter has cleared the applicable EZ. The animal will be
considered to have cleared the applicable zone if it is visually
observed to have left the EZ and has not been seen within the zone for
30 minutes.
(7) Shutdown procedure. A shutdown occurs when all noise-generating
work is suspended.
(i) Noise-generating work will be shut down completely if a sea
otter enters the EZ.
(ii) The shutdown procedure will be accomplished within several
seconds of the determination that a sea otter is either in or about to
enter the EZ or as soon as practicable considering worker safety and
equipment integrity.
(iii) Noise-generating work will not proceed until all sea otters
have cleared the EZ and the PSOs on duty are confident that no sea
otters remain within the EZ. An otter will be considered to have cleared
the EZ if it is visually observed to have left the EZ or has not been
seen within the zone for 30 minutes.
(iv) Visual monitoring must continue for 30 minutes after use of the
acoustic
[[Page 44]]
source ceases or the sun sets, whichever is later.
(8) Emergency shutdown. If observations are made or credible reports
are received that one or more sea otters are within the area of noise-
generating work and are indicating acute distress associated with the
work, such as any injury due to seismic noise or persistent
vocalizations indicating separation of mother from pup, the work will be
immediately shut down and the Service contacted. Work will not be
restarted until review and approval by the Service.
(9) To ensure the proposed activities remain consistent with the
estimated take of sea otters, operators may not conduct 3D seismic
surveys where doing so will generate underwater noise levels that are
likely to exceed acoustic exposure thresholds within areas of estimated
sea otter densities greater than 0.026 otters per km. Maps of the areas
will be provided to 3D seismic operators and may be adjusted based on
SSV results. This does not apply to 2D seismic surveys.
(c) Mitigation for all in-water construction and demolition
activity. (1) The applicant must implement a minimum EZ of a 10-m radius
around the in-water construction and demolition. If a sea otter comes
within or approaches the EZ, such operations must cease. A larger EZ may
be required for some activities, such as blasting, and will be specified
in the LOA.
(2) All work in intertidal areas shall be conducted during low tide
when the site is dewatered to the maximum extent practicable.
(3) The applicant must evaluate alternatives to pile-supported
facilities. If no practicable alternative exists, the applicant must
then evaluate the use of sound-attenuation devices such as pile caps and
cushions, bubble curtains, and dewatered cofferdams during construction.
The Service may require sound-attenuation devices or alternatives to
pile-supported designs.
(d) Measures for vessel-based activities. (1) Vessel operators must
take every precaution to avoid harassment of sea otters when a vessel is
operating near these animals.
(2) Vessels must remain at least 500 m from rafts of otters unless
safety is a factor.
(3) Vessels must reduce speed and maintain a distance of 100 m (328
ft) from all sea otters unless safety is a factor.
(4) Vessels must not be operated in such a way as to separate
members of a group of sea otters from other members of the group.
(5) When weather conditions require, such as when visibility drops,
vessels must adjust speed accordingly to avoid the likelihood of injury
to sea otters.
(6) Vessels in transit and support vessels must use established
navigation channels or commonly recognized vessel traffic corridors, and
must avoid alongshore travel in shallow water (<20 m) whenever
practicable.
(7) All vessels must avoid areas of active or anticipated
subsistence hunting for sea otters as determined through community
consultations.
(8) Vessel operators must be provided written guidance for avoiding
collisions and minimizing disturbances to sea otters. Guidance will
include measures identified in paragraphs (d)(1) through (7) of this
section.
(e) Mitigation measures for aircraft activities. (1) Aircraft must
maintain a minimum altitude of 305 m (1,000 ft) to avoid unnecessary
harassment of sea otters, except during takeoff and landing, and when a
lower flight altitude is necessary for safety due to weather or
restricted visibility.
(2) Aircraft must not be operated in such a way as to separate
members of a group of sea otters from other members of the group.
(3) All aircraft must avoid areas of active or anticipated
subsistence hunting for sea otters as determined through community
consultations.
(4) Unmanned aerial systems or drones must not cause take by
harassment of sea otters. Measures for avoidance of take may be required
in an LOA, and may include maintaining a minimum altitude and horizontal
distance no less than 100 m away from otters, conducting continuous
visual monitoring by PSOs, and ceasing activities in response to sea
otter behaviors indicating any reaction to drones.
[[Page 45]]
Sec.18.138 Monitoring.
(a) Operators shall work with PSOs to apply mitigation measures, and
shall recognize the authority of PSOs, up to and including stopping
work, except where doing so poses a significant safety risk to
personnel.
(b) Duties of PSOs include watching for and identifying sea otters,
recording observation details, documenting presence in any applicable
monitoring zone, identifying and documenting potential harassment, and
working with operators to implement all appropriate mitigation measures.
(c) A sufficient number of PSOs will be available to meet the
following criteria: 100 percent monitoring of EZs during all daytime
periods of underwater noise-generating work; a maximum of 4 consecutive
hours on watch per PSO; a maximum of approximately 12 hours on watch per
day per PSO.
(d) All PSOs will complete a training course designed to familiarize
individuals with monitoring and data collection procedures. A field crew
leader with prior experience as a sea otter observer will supervise the
PSO team. Initially, new or inexperienced PSOs will be paired with
experienced PSOs so that the quality of marine mammal observations and
data recording is kept consistent. Resumes for candidate PSOs will be
made available for the Service to review.
(e) Observers will be provided with reticule binoculars (10x42),
big-eye binoculars or spotting scopes (30x), inclinometers, and range
finders. Field guides, instructional handbooks, maps and a contact list
will also be made available.
(f) Observers will collect data using the following procedures:
(1) All data will be recorded onto a field form or database.
(2) Global positioning system data, sea state, wind force, and
weather will be collected at the beginning and end of a monitoring
period, every hour in between, at the change of an observer, and upon
sightings of sea otters.
(3) Observation records of sea otters will include date; time; the
observer's locations, heading, and speed (if moving); weather;
visibility; number of animals; group size and composition (adults/
juveniles); and the location of the animals (or distance and direction
from the observer).
(4) Observation records will also include initial behaviors of the
sea otters, descriptions of project activities and underwater sound
levels being generated, the position of sea otters relative to
applicable monitoring and mitigation zones, any mitigation measures
applied, and any apparent reactions to the project activities before and
after mitigation.
(5) For all otters in or near a mitigation zone, observers will
record the distance from the vessel to the sea otter upon initial
observation, the duration of the encounter, and the distance at last
observation in order to monitor cumulative sound exposures.
(6) Observers will note any instances of animals lingering close to
or traveling with vessels for prolonged periods of time.
Sec.18.139 Reporting requirements.
(a) Operators must notify the Service at least 48 hours prior to
commencement of activities.
(b) Weekly reports will be submitted to the Service during in-water
seismic activities. The reports will summarize project activities,
monitoring efforts conducted by PSOs, the number of sea otters detected,
the number exposed to sound levels greater than 160 dB, SSV results, and
descriptions of all behavioral reactions of sea otters to project
activities.
(c) Monthly reports will be submitted to the Service MMM for all
months during which noise-generating work takes place. The monthly
report will contain and summarize the following information: Dates,
times, weather, and sea conditions (including Cook Inlet marine state
and wind force) when sea otters were sighted; the number, location,
distance from the sound source, and behavior of the otters; the
associated project activities; and a description of the implementation
and effectiveness of mitigation measures with a discussion of any
specific behaviors the otters exhibited in response to mitigation.
(d) A final report will be submitted to the Service within 90 days
after the expiration of each LOA. It will include the following items:
[[Page 46]]
(1) Summary of monitoring efforts (hours of monitoring, activities
monitored, number of PSOs, and, if requested by the Service, the daily
monitoring logs).
(2) All project activities will be described, along with any
additional work yet to be done. Factors influencing visibility and
detectability of marine mammals (e.g., sea state, number of observers,
and fog and glare) will be discussed.
(3) The report will also address factors affecting the presence and
distribution of sea otters (e.g., weather, sea state, and project
activities). An estimate will be included of the number of sea otters
exposed to noise at received levels greater than or equal to 160 dB
(based on visual observation).
(4) The report will describe changes in sea otter behavior resulting
from project activities and any specific behaviors of interest.
(5) It will provide a discussion of the mitigation measures
implemented during project activities and their observed effectiveness
for minimizing impacts to sea otters. Sea otter observation records will
be provided to the Service in the form of electronic database or
spreadsheet files.
(6) The report will also evaluate the effectiveness of the POC (if
applicable) for preventing impacts to subsistence users of sea otters,
and it will assess any effects the operations may have had on the
availability of sea otters for subsistence harvest.
(e) All reports shall be submitted by email to
[email protected].
(f) Injured, dead, or distressed sea otters that are not associated
with project activities (e.g., animals known to be from outside the
project area, previously wounded animals, or carcasses with moderate to
advanced decomposition or scavenger damage) must be reported to the
Service within 24 hours of the discovery to either the Service MMM (1-
800-362-5148, business hours); or the Alaska SeaLife Center in Seward
(1-888-774-7325, 24 hours a day); or both. Photographs, video, location
information, or any other available documentation shall be provided to
the Service.
(g) Operators must notify the Service upon project completion or end
of the work season.
Sec.18.140 Measures to reduce impacts to subsistence users.
(a) Prior to conducting the work, the applicant will take the
following steps to reduce potential effects on subsistence harvest of
sea otters:
(1) Avoid work in areas of known sea otter subsistence harvest;
(2) Discuss the planned activities with subsistence stakeholders
including Cook Inlet villages, traditional councils, and the Cook Inlet
Regional Citizens Advisory Council;
(3) Identify and work to resolve concerns of stakeholders regarding
the project's effects on subsistence hunting of sea otters; and
(b) If any unresolved or ongoing concerns remain, develop a POC in
consultation with the Service and subsistence stakeholders to address
these concerns. The POC must include a schedule for ongoing community
engagement and specific measures for mitigating any potential conflicts
with subsistence hunting.
Sec.18.141 Information collection requirements.
(a) We may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid Office of Management and Budget (OMB) control number. OMB has
approved the collection of information contained in this subpart and
assigned OMB control number 1018-0070. The applicant must respond to
this information collection request to obtain a benefit pursuant to
section 101(a)(5) of the Marine Mammal Protection Act. We will use the
information to:
(1) Evaluate the application and determine whether or not to issue
specific LOAs; and
(2) Monitor impacts of activities and effectiveness of mitigation
measures conducted under the LOAs.
(b) Comments regarding the burden estimate or any other aspect of
this requirement must be submitted to the Information Collection
Clearance Officer, U.S. Fish and Wildlife Service, at the address listed
in 50 CFR part 2.1.
[[Page 47]]
PART 19_AIRBORNE HUNTING--Table of Contents
Subpart A_Introduction
Sec.
19.1 Purpose of regulations.
19.2 Scope of regulations.
19.3 Relation to other laws.
19.4 Definitions.
Subpart B_Prohibitions
19.11 General prohibitions.
19.12 Exceptions to general prohibitions.
Subpart C_Federal Permits
19.21 Limitation on Federal permits.
Subpart D_State Permits and Annual Report Requirements
19.31 State permits.
19.32 Annual reporting requirements.
Authority: Fish and Wildlife Act of 1956, 85 Stat. 480, as amended,
86 Stat. 905 (16 U.S.C. 742a--j-1).
Source: 39 FR 1177, Jan. 4, 1974, unless otherwise noted.
Subpart A_Introduction
Sec.19.1 Purpose of regulations.
The regulations contained in this part provide rules relative to the
prohibition against shooting or harassing of wildlife from any aircraft,
provide the requirements for the contents and filing of annual reports
by the States regarding permits issued for such shooting or harassing,
and provide regulations necessary for effective enforcement of the Fish
and Wildlife Act of 1956 as amended (16 U.S.C. 742a--j-1).
Sec.19.2 Scope of regulations.
The regulations contained in this part apply to all persons within
the territorial jurisdiction of the United States, to all United States
citizens whether within the territorial jurisdiction of the United
States or on the high seas or on board aircraft in flight over the high
seas, and to all persons on board aircraft belonging in whole or in part
to any United States citizen, firm, or partnership, or corporation
created by or under the laws of the United States, or any State,
territory or possession thereof.
Sec.19.3 Relation to other laws.
The exemptions to general prohibitions of the Fish and Wildlife Act
of 1956, that permit airborne hunting in certain circumstances (See
subpart B of this part) do not supersede, or authorize the violation of,
other laws designed for the conservation or protection of wildlife,
including those laws prohibiting the shooting or harassing of bald and
golden eagles, polar bears and other marine mammals, migratory birds,
and other wildlife, except to the extent that airborne hunting is
authorized by regulations or permits issued under authority of those
laws. (See e.g., Sec.21.41 of this subchapter.)
Sec.19.4 Definitions.
In addition to definitions contained in part 10 of this subchapter,
and unless the context otherwise requires, in this part 19:
Harass means to disturb, worry, molest, rally, concentrate, harry,
chase, drive, herd or torment.
Subpart B_Prohibitions
Sec.19.11 General prohibitions.
(a) Except as otherwise authorized by the Fish and Wildlife Act of
1956 as amended, no person shall:
(1) While airborne in any aircraft shoot or attempt to shoot for the
purpose of capturing or killing any wildlife;
(2) Use an aircraft to harass any wildlife; or
(3) Knowingly participate in using an aircraft whether in the
aircraft or on the ground for any purpose referred to in paragraph (a)
(1) or (2) of this section.
(b) The acts prohibited in this section include, but are not limited
to, any person who:
(1) Pilots or assists in the operation of an aircraft from which
another person shoots or shoots at wildlife while airborne, or
(2) While on the ground takes or attempts to take any wildlife by
means, aid, or use of an aircraft.
[[Page 48]]
Sec.19.12 Exceptions to general prohibitions.
The prohibitions of the preceding section shall not apply to any
person who:
(1) Is acting within the scope of his official duties as an employee
or authorized agent of a State or the United States to administer or
protect or aid in the administration or protection of land, water,
wildlife, livestock, domesticated animals, human life or crops; or
(2) Is acting within the limitations of a permit referred to in
Sec.19.21 or Sec.19.31 of this part.
Subpart C_Federal Permits
Sec.19.21 Limitation on Federal permits.
No Federal permits will be issued to authorize any person to hunt,
shoot, or harass any wildlife from an aircraft, except for Federal
permits to scare or herd migratory birds referred to in Sec.21.41 of
this subchapter.
Subpart D_State Permits and Annual Report Requirements
Sec.19.31 State permits.
(a) Except as provided in Sec.19.3, States may issue permits to
persons to engage in airborne hunting or harassing of wildlife for
purposes of administering or protecting land, water, wildlife,
livestock, domestic animals, human life or crops. States may not issue
permits for the purpose of sport hunting.
(b) Upon issuance of a permit by a State to a person pursuant to
this section, the issuing authority will provide immediate notification
to the Special Agent in Charge having jurisdiction according to Sec.
10.22.
Sec.19.32 Annual reporting requirements.
(a) Any State issuing permits to persons to engage in airborne
hunting or harassing of wildlife or any State whose employees or agents
participate in airborne hunting or harassing of wildlife for purposes of
administering or protecting land, water, wildlife, livestock, domestic
animals, human life or crops, shall file with the Director, an annual
report on or before July 1 for the preceding calendar year ending
December 31.
(b) The annual report required by this section shall contain the
following information as to each such permit issued:
(1) The name and address of each person to whom a permit was issued.
(2) Permit number and inclusive dates during which permit was valid.
(3) The aircraft number of the aircraft used and the location where
such aircraft was based.
(4) Common name and number of the wildlife for which authorization
to take was given and a description of the area from which the wildlife
were authorized to be taken.
(5) The purpose for which the permit was issued, specifically
identifying whether the permit was issued to protect land, water,
wildlife, livestock, domestic animals, crops, or human life.
(6) The common name and number of wildlife taken by permittees and
State employees or agents.
(c) A compilation of all annual reports required by this section
shall be made by the Director and furnished to any State filing such
annual report.
PART 20_MIGRATORY BIRD HUNTING--Table of Contents
Subpart A_Introduction
Sec.
20.1 Scope of regulations.
20.2 Relation to other provisions.
Subpart B_Definitions
20.11 What terms do I need to understand?
Subpart C_Taking
20.20 Migratory Bird Harvest Information Program.
20.21 What hunting methods are illegal?
20.22 Closed seasons.
20.23 Shooting hours.
20.24 Daily limit.
20.25 Wanton waste of migratory game birds.
20.26 Emergency closures.
Subpart D_Possession
20.31 Prohibited if taken in violation of subpart C.
20.32 During closed season.
20.33 Possession limit.
20.34 Opening day of a season.
20.35 Field possession limit.
20.36 Tagging requirement.
[[Page 49]]
20.37 Custody of birds of another.
20.38 Possession of live birds.
20.39 Termination of possession.
20.40 Gift of migratory game birds.
Subpart E_Transportation Within the United States
20.41 Prohibited if taken in violation of subpart C.
20.42 Transportation of birds of another.
20.43 Species identification requirement.
20.44 Marking package or container.
Subpart F_Exportation
20.51 Prohibited if taken in violation of subpart C.
20.52 Species identification requirement.
20.53 Marking package or container.
Subpart G_Importations
20.61 Importation limits.
20.62 Importation of birds of another.
20.63 Species identification requirement.
20.64 Foreign export permits.
20.65 Processing requirement.
20.66 Marking of package or container.
Subpart H_Federal, State, and Foreign Law
20.71 Violation of Federal law.
20.72 Violation of State law.
20.73 Violation of foreign law.
Subpart I_Migratory Bird Preservation Facilities
20.81 Tagging requirement.
20.82 Records required.
20.83 Inspection of premises.
Subpart J_Feathers or Skins
20.91 Commercial use of feathers.
20.92 Personal use of feathers or skins.
Subpart K_Annual Seasons, Limits, and Shooting Hours Schedules
20.100 General provisions.
20.101 Seasons, limits, and shooting hours for Puerto Rico and the
Virgin Islands.
20.102 Seasons, limits, and shooting hours for Alaska.
20.103 Seasons, limits, and shooting hours for mourning and white-winged
doves and wild pigeons.
20.104 Seasons, limits, and shooting hours for rails, woodcock, and
common (Wilson's) snipe.
20.105 Seasons, limits, and shooting hours for waterfowl, coots, and
gallinules.
20.106 Seasons, limits, and shooting hours for sandhill cranes.
20.107 Seasons, limits, and shooting hours for tundra swans.
20.108 Nontoxic shot zones.
20.109 Extended seasons, limits, and hours for taking migratory game
birds by falconry.
20.110 Seasons, limits and other regulations for certain Federal Indian
reservations, Indian Territory, and ceded lands.
Subpart L_Administrative and Miscellaneous Provisions
20.131 Extension of seasons.
20.132 Subsistence use in Alaska.
20.133 Hunting regulations for crows.
20.134 Approval of nontoxic shot types and shot coatings.
Subpart M [Reserved]
Subpart N_Special Procedures for Issuance of Annual Hunting Regulations
20.151 Purpose and scope.
20.152 Definitions.
20.153 Regulations committee.
20.154 Flyway Councils.
20.155 Public file.
Authority: 16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.
Source: 38 FR 22021, Aug. 15, 1973, unless otherwise noted.
Subpart A_Introduction
Sec.20.1 Scope of regulations.
(a) In general. The regulations contained in this part relate only
to the hunting of migratory game birds, and crows.
(b) Procedural and substantive requirements. Migratory game birds
may be taken, possessed, transported, shipped, exported, or imported
only in accordance with the restrictions, conditions, and requirements
contained in this part. Crows may be taken, possessed, transported,
exported, or imported only in accordance with subpart H of this part and
the restrictions, conditions, and requirements prescribed in Sec.
20.133.
Sec.20.2 Relation to other provisions.
(a) Migratory bird permits. The provisions of this part shall not be
construed to alter the terms of any permit or other authorization issued
pursuant to part 21 of this subchapter.
(b) Migratory bird hunting stamps. The provisions of this part are
in addition
[[Page 50]]
to the provisions of the Migratory Bird Hunting Stamp Act of 1934 (48
Stat. 451, as amended; 16 U.S.C. 718a).
(c) National wildlife refuges. The provisions of this part are in
addition to, and are not in lieu of, any other provision of law
respecting migratory game birds under the National Wildlife Refuge
System Administration Act of 1966 (80 Stat. 927, as amended; 16 U.S.C.
668dd) or any regulation made pursuant thereto.
(d) State Laws for the protection of migratory birds. No statute or
regulation of any State shall be construed to relieve a person from the
restrictions, conditions, and requirements contained in this part,
however, nothing in this part shall be construed to prevent the several
States from making and enforcing laws or regulations not inconsistent
with these regulations and the conventions between the United States and
any foreign country for the protection of migratory birds or with the
Migratory Bird Treaty Act, or which shall give further protection to
migratory game birds.
(e) Migratory bird subsistence harvest in Alaska. The provisions of
this part, except for paragraphs (a) through (d) of this section, are
not applicable to the regulations governing the migratory bird
subsistence harvest in Alaska (part 92 of this subchapter) unless
specifically referenced in part 92 of subchapter G of this chapter.
[38 FR 22021, Aug. 15, 1973, as amended at 68 FR 43027, July 21, 2003]
Subpart B_Definitions
Sec.20.11 What terms do I need to understand?
For the purpose of this part, the following terms shall be
construed, respectively, to mean and to include:
(a) Migratory game birds means those migratory birds included in the
terms of conventions between the United States and any foreign country
for the protection of migratory birds, for which open seasons are
prescribed in this part and belong to the following families:
(1) Anatidae (ducks, geese [including brant] and swans);
(2) Columbidae (doves and pigeons);
(3) Gruidae (cranes);
(4) Rallidae (rails, coots and gallinules); and
(5) Scolopacidae (woodcock and snipe).
A list of migratory birds protected by the international conventions
and the Migratory Bird Treaty Act appears in Sec.10.13 of this
subchapter.
(b) Seasons--(1) Open season means the days on which migratory game
birds may lawfully be taken. Each period precribed as an open season
shall be construed to include the first and last days thereof.
(2) Closed season means the days on which migratory game birds shall
not be taken.
(c) Bag limits--(1) Aggregate bag limit means a condition of taking
in which two or more usually similar species may be bagged (reduced to
possession) by the hunter in predetermined or unpredetermined quantities
to satisfy a maximum take limit.
(2) Daily bag limit means the maximum number of migratory game birds
of single species or combination (aggregate) of species permitted to be
taken by one person in any one day during the open season in any one
specified geographic area for which a daily bag limit is prescribed.
(3) Aggregate daily bag limit means the maximum number of migratory
game birds permitted to be taken by one person in any one day during the
open season when such person hunts in more than one specified geographic
area and/or for more than one species for which a combined daily bag
limit is prescribed. The aggregate daily bag limit is equal to, but
shall not exceed, the largest daily bag limit prescribed for any one
species or for any one specified geographic area in which taking occurs.
(4) Possession limit means the maximum number of migratory game
birds of a single species or a combination of species permitted to be
possessed by any one person when lawfully taken in the United States in
any one specified geographic area for which a possession limit is
prescribed.
(5) Aggregate possession limit means the maximum number of migratory
game birds of a single species or combination of species taken in the
United States permitted to be possessed by
[[Page 51]]
any one person when taking and possession occurs in more than one
specified geographic area for which a possession limit is prescribed.
The aggegate possession limit is equal to, but shall not exceed, the
largest possession limit prescribed for any one of the species or
specified geographic areas in which taking and possession occurs.
(d) Personal abode means one's principal or ordinary home or
dwelling place, as distinguished from one's temporary or transient place
of abode or dwelling such as a hunting club, or any club house, cabin,
tent or trailer house used as a hunting club, or any hotel, motel or
rooming house used during a hunting, pleasure or business trip.
(e) Migratory bird preservation facility means:
(1) Any person who, at their residence or place of business and for
hire or other consideration; or
(2) Any taxidermist, cold-storage facility or locker plant which,
for hire or other consideration; or
(3) Any hunting club which, in the normal course of operations;
receives, possesses, or has in custody any migratory game birds
belonging to another person for purposes of picking, cleaning, freezing,
processing, storage or shipment.
(f) Paraplegic means an individual afflicted with paralysis of the
lower half of the body with involvement of both legs, usually due to
disease of or injury to the spinal cord.
(g) Normal agricultural planting, harvesting, or post-harvest
manipulation means a planting or harvesting undertaken for the purpose
of producing and gathering a crop, or manipulation after such harvest
and removal of grain, that is conducted in accordance with official
recommendations of State Extension Specialists of the Cooperative
Extension Service of the U.S. Department of Agriculture.
(h) Normal agricultural operation means a normal agricultural
planting, harvesting, post-harvest manipulation, or agricultural
practice, that is conducted in accordance with official recommendations
of State Extension Specialists of the Cooperative Extension Service of
the U.S. Department of Agriculture.
(i) Normal soil stabilization practice means a planting for
agricultural soil erosion control or post-mining land reclamation
conducted in accordance with official recommendations of State Extension
Specialists of the Cooperative Extension Service of the U.S. Department
of Agriculture for agricultural soil erosion control.
(j) Baited area means any area on which salt, grain, or other feed
has been placed, exposed, deposited, distributed, or scattered, if that
salt, grain, or other feed could serve as a lure or attraction for
migratory game birds to, on, or over areas where hunters are attempting
to take them. Any such area will remain a baited area for ten days
following the complete removal of all such salt, grain, or other feed.
(k) Baiting means the direct or indirect placing, exposing,
depositing, distributing, or scattering of salt, grain, or other feed
that could serve as a lure or attraction for migratory game birds to,
on, or over any areas where hunters are attempting to take them.
(l) Manipulation means the alteration of natural vegetation or
agricultural crops by activities that include but are not limited to
mowing, shredding, discing, rolling, chopping, trampling, flattening,
burning, or herbicide treatments. The term manipulation does not include
the distributing or scattering of grain, seed, or other feed after
removal from or storage on the field where grown.
(m) Rice ratooning means the agricultural practice of harvesting
rice by cutting the majority of the aboveground portion of the rice
plant but leaving the roots and growing shoot apices intact to allow the
plant to recover and produce a second crop yield.
(n) Post-disaster flooding means the destruction of a crop through
flooding in accordance with practices required by the Federal Crop
Insurance Corporation for agricultural producers to obtain crop
insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.)
on land on which a crop was not harvestable due to a natural disaster
(including any hurricane, storm, tornado, flood, high water, wind-driven
water, tidal wave, tsunami, earthquake, volcanic eruption, landslide,
[[Page 52]]
mudslide, drought, fire, snowstorm, or other catastrophe that is
declared a major disaster by the President in accordance with section
401 of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (42 U.S.C. 5170)) in the crop year--
(1) In which the natural disaster occurred; or
(2) Immediately preceding the crop year in which the natural
disaster occurred.
(o) Natural vegetation means any non-agricultural, native, or
naturalized plant species that grows at a site in response to planting
or from existing seeds or other propagules. The term natural vegetation
does not include planted millet. However, planted millet that grows on
its own in subsequent years after the year of planting is considered
natural vegetation.
(p) Resident Canada geese means Canada geese that nest within the
lower 48 States and the District of Columbia or that reside within the
lower 48 States and the District of Columbia in the months of April,
May, June, July, or August.
[53 FR 24290, June 28, 1988, as amended at 64 FR 29804, June 3, 1999; 71
FR 45986, Aug. 10, 2006; 72 FR 46407, Aug. 20, 2007; 84 FR 28773, June
20, 2019; 84 FR 38885, Aug. 8, 2019]
Subpart C_Taking
Sec.20.20 Migratory Bird Harvest Information Program.
(a) Information collection requirements. The collections of
information contained in Sec.20.20 have been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned
clearance number 1018-0015. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number. The information will
be used to provide a sampling frame for the national Migratory Bird
Harvest Survey. Response is required from licensed hunters to obtain the
benefit of hunting migratory game birds. Public reporting burden for
this information is estimated to average 2 minutes per response for
3,300,000 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information. Thus
the total annual reporting and record-keeping burden for this collection
is estimated to be 112,000 hours. Send comments regarding this burden
estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Service's
Information Collection Clearance Officer at the address provided at 50
CFR 2.1(b).
(b) General provisions. Each person hunting migratory game birds in
any State except Hawaii must have identified himself or herself as a
migratory bird hunter and given his or her name, address, and date of
birth to the respective State hunting licensing authority and must have
on his or her person evidence, provided by that State, of compliance
with this requirement.
(c) Tribal exemptions. Nothing in paragraph (b) of this section
shall apply to tribal members on Federal Indian Reservations or to
tribal members hunting on ceded lands.
(d) State exemptions. Nothing in paragraph (b) of this section shall
apply to those hunters who are exempt from State-licensing requirements
in the State in which they are hunting.
(e) State responsibilities. The State hunting licensing authority
will ask each licensed migratory bird hunter in the respective State to
report approximately how many ducks, geese, doves, and woodcock he or
she bagged the previous year, whether he or she hunted coots, snipe,
rails, and/or gallinules the previous year, and, in States that have
band-tailed pigeon hunting seasons, whether he or she intends to hunt
band-tailed pigeons during the current year.
[58 FR 15098, Mar. 19, 1993, as amended at 59 FR 53336, Oct. 21, 1994;
61 FR 46352, Aug. 30, 1996; 62 FR 45708, Aug. 28, 1997; 63 FR 46401,
Sept. 1, 1998; 79 FR 43965, July 29, 2014]
Sec.20.21 What hunting methods are illegal?
Migratory birds on which open seasons are prescribed in this part
may be taken by any method except those prohibited in this section. No
persons shall take migratory game birds:
[[Page 53]]
(a) With a trap, snare, net, rifle, pistol, swivel gun, shotgun
larger than 10 gauge, punt gun, battery gun, machinegun, fish hook,
poison, drug, explosive, or stupefying substance;
(b) With a shotgun of any description capable of holding more than
three shells, unless it is plugged with a one-piece filler, incapable of
removal without disassembling the gun, so its total capacity does not
exceed three shells. However, this restriction does not apply during:
(1) A light-goose-only season (greater and lesser snow geese and
Ross' geese) when all other waterfowl and crane hunting seasons,
excluding falconry, are closed.
(2) A Canada goose only season when all other waterfowl and crane
hunting seasons, excluding falconry, are closed in the Atlantic,
Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado,
Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New
Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and
Wyoming, as set forth below:
(i) During the period of September 1 to September 15, when approved
in the annual regulatory schedule in subpart K of this part; and
(ii) During the period of September 16 to September 30, when
approved in the annual regulatory schedule in subpart K of this part.
(c) From or by means, aid, or use of a sinkbox or any other type of
low floating device, having a depression affording the hunter a means of
concealment beneath the surface of the water;
(d) From or by means, aid, or use of any motor vehicle, motor-driven
land conveyance, or aircraft of any kind, except that paraplegics and
persons missing one or both legs may take from any stationary motor
vehicle or stationary motor-driven land conveyance;
(e) From or by means of any motorboat or other craft having a motor
attached, or any sailboat, unless the motor has been completely shut off
and/or the sails furled, and its progress therefrom has ceased:
Provided, That a craft under power may be used to retrieve dead or
crippled birds; however, crippled birds may not be shot from such craft
under power except in the seaduck area as permitted in subpart K of this
part;
(f) By the use or aid of live birds as decoys; although not limited
to, it shall be a violation of this paragraph for any person to take
migratory waterfowl on an area where tame or captive live ducks or geese
are present unless such birds are and have been for a period of 10
consecutive days prior to such taking, confined within an enclosure
which substantially reduces the audibility of their calls and totally
conceals such birds from the sight of wild migratory waterfowl;
(g) By the use or aid of recorded or electrically amplified bird
calls or sounds, or recorded or electrically amplified imitations of
bird calls or sounds. However, this restriction does not apply during:
(1) A light-goose-only season (greater and lesser snow geese and
Ross' geese) when all other waterfowl and crane hunting seasons,
excluding falconry, are closed.
(2) A Canada goose only season when all other waterfowl and crane
hunting seasons, excluding falconry, are closed in the Atlantic,
Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado,
Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New
Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and
Wyoming, as set forth below:
(i) During the period of September 1 to September 15, when approved
in the annual regulatory schedule in subpart K of this part; and
(ii) During the period of September 16 to September 30, when
approved in the
[[Page 54]]
annual regulatory schedule in subpart K of this part.
(h) By means or aid of any motordriven land, water, or air
conveyance, or any sailboat used for the purpose of or resulting in the
concentrating, driving, rallying, or stirring up of any migratory bird;
(i) By the aid of baiting, or on or over any baited area, where a
person knows or reasonably should know that the area is or has been
baited. However, nothing in this paragraph prohibits:
(1) the taking of any migratory game bird, including waterfowl,
coots, and cranes, on or over the following lands or areas that are not
otherwise baited areas--
(i) Standing crops or flooded standing crops (including aquatics);
standing, flooded, or manipulated natural vegetation; flooded harvested
croplands; or lands or areas where seeds or grains have been scattered
solely as the result of a normal agricultural planting, harvesting,
post-harvest manipulation, rice ratooning, post-disaster flooding, or
normal soil stabilization practice;
(ii) From a blind or other place of concealment camouflaged with
natural vegetation;
(iii) From a blind or other place of concealment camouflaged with
vegetation from agricultural crops, as long as such camouflaging does
not result in the exposing, depositing, distributing or scattering of
grain or other feed; or
(iv) Standing or flooded standing agricultural crops where grain is
inadvertently scattered solely as a result of a hunter entering or
exiting a hunting area, placing decoys, or retrieving downed birds.
(2) The taking of any migratory game bird, except waterfowl, coots
and cranes, on or over lands or areas that are not otherwise baited
areas, and where grain or other feed has been distributed or scattered
solely as the result of manipulation of an agricultural crop or other
feed on the land where grown, or solely as the result of a normal
agricultural operation.
(j)(1) While possessing loose shot for muzzle loading or shotshells
containing other than the following approved shot types.
------------------------------------------------------------------------
Percent composition by Field testing
Approved shot type* weight device**
------------------------------------------------------------------------
Bismuth-tin................... 97 bismuth, and 3 tin. Hot
Shot[supreg]***
Iron (steel).................. iron and carbon....... Magnet or Hot
Shot[supreg].
Iron-tungsten................. any proportion of Magnet or Hot
tungsten, and =1 iron.
Iron-tungsten-nickel.......... =1 iron, Magnet or Hot
any proportion of Shot[supreg].
tungsten, and up to
40 nickel.
Copper-clad iron.............. 84 to 56.59 iron core, Magnet or Hot
with copper cladding Shot[supreg]
up to 44.1 of the
shot mass.
Corrosion-inhibited copper.... =99.9 Ultraviolet
copper with Light.
benzotriazole and
thermoplastic
fluorescent powder
coatings.
Tungsten-bronze............... 51.1 tungsten, 44.4 Rare Earth
copper, 3.9 tin, and Magnet.
0.6 iron, or 60
tungsten, 35.1
copper, 3.9 tin, and
1 iron.
Tungsten-iron-copper-nickel... 40-76 tungsten, 10-37 Hot Shot[supreg]
iron, 9-16 copper, or Rare Earth
and 5-7 nickel. Magnet.
Tungsten-matrix............... 95.9 tungsten, 4.1 Hot
polymer. Shot[supreg].
Tungsten-polymer.............. 95.5 tungsten, 4.5 Hot
Nylon 6 or 11. Shot[supreg].
Tungsten-tin-iron............. any proportions of Magnet or Hot
tungsten and tin, and Shot[supreg].
=1 iron.
Tungsten-tin-bismuth.......... any proportions of Rare Earth
tungsten, tin, and Magnet.
bismuth.
Tungsten-tin-iron-nickel...... 65 tungsten, 21.8 tin, Magnet.
10.4 iron, and 2.8
nickel.
Tungsten-iron-polymer......... 41.5-95.2 tungsten, Rare Earth
1.5-52.0 iron, and Magnet or Hot
3.5-8.0 fluoropolymer. Shot[supreg].
------------------------------------------------------------------------
* Coatings of copper, nickel, tin, zinc, zinc chloride, zinc chrome,
fluoropolymers, and fluorescent thermoplastic on approved nontoxic
shot types also are approved.
** The information in the ``Field Testing Device'' column is strictly
informational, not regulatory.
*** The ``HOT*SHOT'' field testing device is from Stream Systems of
Concord, CA.
[[Page 55]]
(2) Each approved shot type must contain less than 1 percent
residual lead (see Sec.20.134).
(3) This shot type restriction applies to the taking of ducks, geese
(including brant), swans, coots (Fulica americana), and any other
species that make up aggregate bag limits with these migratory game
birds during concurrent seasons in areas described in Sec.20.108 as
nontoxic shot zones.
[38 FR 22021, Aug. 15, 1973, as amended at 38 FR 22896, Aug. 27, 1973;
44 FR 2599, Jan. 12, 1979; 45 FR 70275, Oct. 23, 1980; 49 FR 4079, Feb.
2, 1984; 52 FR 27364, July 21, 1987; 53 FR 24290, June 28, 1988; 60 FR
64, Jan. 3, 1995; 60 FR 43316, Aug. 18, 1995; 61 FR 42494, Aug. 15,
1996; 62 FR 43447, Aug. 13, 1997; 64 FR 29804, June 3, 1999; 64 FR
32780, June 17, 1999; 64 FR 45405, Aug. 19, 1999; 64 FR 71237, Dec. 20,
1999; 65 FR 53940, Sept. 6, 2000; 66 FR 742, Jan. 4, 2001; 66 FR 32265,
June 14, 2001; 68 FR 1392, Jan. 10, 2003; 69 FR 48165, Aug. 9, 2004; 70
FR 49196, Aug. 23, 2005; 71 FR 4297, Jan. 26, 2006; 71 FR 45986, Aug.
10, 2006; 72 FR 46407, Aug. 20, 2007; 73 FR 65277, Nov. 3, 2008; 73 FR
70914, Nov. 24, 2008; 74 FR 53671, Oct. 20, 2009; 74 FR 57615, Nov. 9,
2009; 78 FR 65575, Nov. 1, 2013; 82 FR 51362, Nov. 6, 2017; 84 FR 38885,
Aug. 8, 2019]
Sec.20.22 Closed seasons.
No person shall take migratory game birds during the closed season
except as provided in part 21 of this chapter.
[73 FR 65951, Nov. 5, 2008]
Sec.20.23 Shooting hours.
No person shall take migratory game birds except during the hours
open to shooting as prescribed in subpart K of this part and subpart E
of part 21 of this chapter.
[73 FR 65951, Nov. 5, 2008]
Sec.20.24 Daily limit.
No person shall take in any 1 calendar day, more than the daily bag
limit or aggregate daily bag limit, whichever applies.
[38 FR 22021, Aug. 15, 1973, as amended at 38 FR 22626, Aug. 23, 1973]
Sec.20.25 Wanton waste of migratory game birds.
No person shall kill or cripple any migratory game bird pursuant to
this part without making a reasonable effort to retrieve the bird, and
retain it in his actual custody, at the place where taken or between
that place and either (a) his automobile or principal means of land
transportation; or (b) his personal abode or temporary or transient
place of lodging; or (c) a migratory bird preservation facility; or (d)
a post office; or (e) a common carrier facility.
[41 FR 31536, July 29, 1976]
Sec.20.26 Emergency closures.
(a) The Director may close or temporarily suspend any season
established under subpart K of this part:
(1) Upon a finding that a continuation of such a season would
constitute an imminent threat to the safety of any endangered or
threatened species or other migratory bird populations.
(2) Upon issuance of local public notice by such means as
publication in local newspapers of general circulation, posting of the
areas affected, notifying the State wildlife conservation agency, and
announcement on local radio and television.
(b) Any such closure or temporary suspension shall be announced by
publication of a notice to that effect in the Federal Register
simultaneous with the local public notice referred to in paragraph
(a)(2) of this section. However, in the event that it is impractical to
publish a Federal Register notice simultaneously, due to the restriction
in time available and the nature of the particular emergency situation,
such notice shall follow the steps outlined in paragraph (a) of this
section as soon as possible.
(c) Any closure or temporary suspension under this section shall be
effective on the date of publication of the Federal Register notice; or
if such notice is not published simultaneously, then on the date and at
the time specified in the local notification to the public. Every notice
of closure shall include the date and time of closing of the season and
the area or areas affected. In the case of a temporary suspension, the
date and time when the season may be resumed shall be provided by a
subsequent local notification to the public, and by publication in the
Federal Register.
[41 FR 31536, July 29, 1976]
[[Page 56]]
Subpart D_Possession
Sec.20.31 Prohibited if taken in violation of subpart C.
No person shall at any time, by any means, or in any manner, possess
or have in custody any migratory game bird or part thereof, taken in
violation of any provision of subpart C of this part.
Sec.20.32 During closed season.
No person shall possess any freshly killed migratory game birds
during the closed season.
Sec.20.33 Possession limit.
No person shall possess more migratory game birds taken in the
United States than the possession limit or the aggregate possession
limit, whichever applies.
Sec.20.34 Opening day of a season.
No person on the opening day of the season shall possess any freshly
killed migratory game birds in excess of the daily bag limit, or
aggregate daily bag limit, whichever applies.
Sec.20.35 Field possession limit.
No person shall possess, have in custody, or transport more than the
daily bag limit or aggregate daily bag limit, whichever applies, of
migratory game birds, tagged or not tagged, at or between the place
where taken and either (a) his automobile or principal means of land
transportation; or (b) his personal abode or temporary or transient
place of lodging; or (c) a migratory bird preservation facility; or (d)
a post office; or (e) a common carrier facility.
[41 FR 31536, July 29, 1976]
Sec.20.36 Tagging requirement.
No person shall put or leave any migratory game birds at any place
(other than at his personal abode), or in the custody of another person
for picking, cleaning, processing, shipping, transportation, or storage
(including temporary storage), or for the purpose of having taxidermy
services performed, unless such birds have a tag attached, signed by the
hunter, stating his address, the total number and species of birds, and
the date such birds were killed. Migratory game birds being transported
in any vehicle as the personal baggage of the possessor shall not be
considered as being in storage or temporary storage.
Sec.20.37 Custody of birds of another.
No person shall receive or have in custody any migratory game birds
belonging to another person unless such birds are tagged as required by
Sec.20.36.
Sec.20.38 Possession of live birds.
Every migratory game bird wounded by hunting and reduced to
possession by the hunter shall be immediately killed and become a part
of the daily bag limit. No person shall at any time, or by any means,
possess or transport live migratory game birds taken under authority of
this part.
Sec.20.39 Termination of possession.
Subject to all other requirements of this part, the possession of
birds taken by any hunter shall be deemed to have ceased when such birds
have been delivered by him to another person as a gift; or have been
delivered by him to a post office, a common carrier, or a migratory bird
preservation facility and consigned for transport by the Postal Service
or a common carrier to some person other than the hunter.
[41 FR 31537, July 29, 1976]
Sec.20.40 Gift of migratory game birds.
No person may receive, possess, or give to another, any freshly
killed migratory game birds as a gift, except at the personal abodes of
the donor or donee, unless such birds have a tag attached, signed by the
hunter who took the birds, stating such hunter's address, the total
number and species of birds and the date such birds were taken.
[42 FR 39668, Aug. 5, 1977]
Subpart E_Transportation Within the United States
Sec.20.41 Prohibited if taken in violation of subpart C.
No person shall at any time, by any means, or in any manner,
transport
[[Page 57]]
any migratory game bird or part thereof, taken in violation of any
provision of subpart C of this part.
Sec.20.42 Transportation of birds of another.
No person shall transport migratory game birds belonging to another
person unless such birds are tagged as required by Sec.20.36.
Sec.20.43 Species identification requirement.
No person shall transport within the United States any migratory
game birds, except doves and band-tailed pigeons (Columba fasciata),
unless the head or one fully feathered wing remains attached to each
such bird at all times while being transported from the place where
taken until they have arrived at the personal abode of the possessor or
a migratory bird preservation facility.
[41 FR 31537, July 19, 1976]
Sec.20.44 Marking package or container.
No person shall transport by the Postal Service or a common carrier
migratory game birds unless the package or container in which such birds
are transported has the name and address of the shipper and the
consignee and an accurate statement of the numbers of each species of
birds therein contained clearly and conspicuously marked on the outside
thereof.
Subpart F_Exportation
Sec.20.51 Prohibited if taken in violation of subpart C.
No person shall at any time, by any means, or in any manner, export
or cause to be exported, any migratory game bird or part thereof, taken
in violation of any provision of subpart C of this part.
Sec.20.52 Species identification requirement.
No person shall export migratory game birds unless one fully
feathered wing remains attached to each such bird while being
transported from the United States and/or any of its possessions to any
foreign country.
Sec.20.53 Marking package or container.
No person shall export migratory game birds via the Postal Service
or a common carrier unless the package or container has the name and
address of the shipper and the consignee and an accurate statement of
the numbers of each species of birds therein contained clearly and
conspicuously marked on the outside thereof.
Subpart G_Importations
Sec.20.61 Importation limits.
No person shall import migratory game birds in excess of the
following importation limits:
(a) Doves and pigeons. (1) From any foreign country except Mexico,
during any one calendar week beginning on Sunday, not to exceed 25
doves, singly or in the aggregate of all species, and 10 pigeons, singly
or in the aggregate of all species.
(2) From Mexico, not to exceed the maximum number permitted by
Mexican authorities to be taken in any one day: Provided, That if the
importer has his Mexican hunting permit date-stamped by appropriate
Mexican wildlife authorities on the first day he hunts in Mexico, he may
import the applicable Mexican possession limit corresponding to the days
actually hunted during that particular trip.
(b) Waterfowl. (1) From any foreign country except Canada and
Mexico, during any one calendar week beginning on Sunday, not to exceed
10 ducks, singly or in the aggregate of all species, and five geese
including brant, singly or in the aggregate of all species.
(2) From Canada, not to exceed the maximum number permitted to be
exported by Canadian authorities.
(3) From Mexico, not to exceed the maximum number permitted by
Mexican authorities to be taken in any one day: Provided, That if the
importer has his Mexican hunting permit date-stamped by appropriate
Mexican wildlife authorities on the first day he hunts in Mexico, he may
import the applicable Mexican possession limit corresponding to the days
actually hunted during that particular trip.
[40 FR 36346, Aug. 20, 1975]
[[Page 58]]
Sec.20.62 Importation of birds of another.
No person shall import migratory game birds belonging to another
person.
Sec.20.63 Species identification requirement.
No person shall import migratory game birds unless each such bird
has one fully feathered wing attached, and such wing must remain
attached while being transported between the port of entry and the
personal abode of the possessor or between the port of entry and a
migratory bird preservation facility.
[41 FR 31537, July 19, 1976]
Sec.20.64 Foreign export permits.
No person shall import, possess or transport, any migratory game
birds killed in a foreign country unless such birds are accompanied by
export permits, tags, or other documentation required by applicable
foreign laws or regulations.
Sec.20.65 Processing requirement.
No person shall import migratory game birds killed in any foreign
country, except Canada, unless such birds are dressed (except as
required in Sec.20.63), drawn, and the head and feet are removed:
Provided, That this shall not prohibit the importation of legally taken,
fully feathered migratory game birds consigned for mounting purposes to
a taxidermist who holds a current taxidermist permit issued to him
pursuant to Sec.21.24 of this chapter and who is also licensed by the
U.S. Department of Agriculture to decontaminate such birds.
Sec.20.66 Marking of package or container.
No person shall import migratory game birds via the Postal Service
or a common carrier unless the package or container has the name and
address of the shipper and the consignee and an accurate statement of
the numbers of each species of birds therein contained clearly and
conspicuously marked on the outside thereof.
Subpart H_Federal, State, and Foreign Law
Sec.20.71 Violation of Federal law.
No person shall at any time, by any means or in any manner, take,
possess, transport, or export any migratory bird, or any part, nest, or
egg of any such bird, in violation of any act of Congress or any
regulation issued pursuant thereto.
Sec.20.72 Violation of State law.
No person shall at any time, by any means or in any manner, take,
possess, transport, or export any migratory bird, or any part, nest, or
egg of any such bird, in violation of any applicable law or regulation
of any State.
Sec.20.73 Violation of foreign law.
No person shall at any time, by any means, or in any manner, import,
possess, or transport, any migratory bird, or any part, nest, or egg of
any such bird taken, bought, sold, transported, possessed, or exported
contrary to any applicable law or regulation of any foreign country, or
State or province thereof.
Subpart I_Migratory Bird Preservation Facilities
Sec.20.81 Tagging requirement.
No migratory bird preservation facility shall receive or have in
custody any migratory game birds unless such birds are tagged as
required by Sec.20.36.
[41 FR 31537, July 29, 1976]
Sec.20.82 Records required.
(a) No migratory bird preservation facility shall:
(1) Receive or have in custody any migratory game bird unless
accurate records are maintained which can identify each bird received
by, or in the custody of, the facility by the name of the person from
whom the bird was obtained, and show (i) the number of each species;
(ii) the location where taken; (iii) the date such birds were received;
(iv) the name and address of the person from whom such birds were
received; (v) the date such birds were disposed of; and (vi) the name
and address of the
[[Page 59]]
person to whom such birds were delivered, or
(2) Destroy any records required to be maintained under this section
for a period of 1 year following the last entry on the record.
(b) Record keeping as required by this section will not be necessary
at hunting clubs which do not fully process migratory birds by removal
of both the head and wings.
[41 FR 38510, Sept. 10, 1976]
Sec.20.83 Inspection of premises.
No migratory bird preservation facility shall prevent any person
authorized to enforce this part from entering such facilities at all
reasonable hours and inspecting the records and the premises where such
operations are being carried.
[41 FR 31537, July 19, 1976]
Subpart J_Feathers or Skins
Sec.20.91 Commercial use of feathers.
Any person may possess, purchase, sell, barter, or transport for the
making of fishing flies, bed pillows, and mattresses, and for similar
commercial uses the feathers of migratory waterfowl (ducks, geese,
brant, and swans) killed by hunting pursuant to this part, or seized and
condemned by Federal or State game authorities, except that:
(a) No person shall purchase, sell, barter, or offer to purchase,
sell, or barter for millinery or ornamental use the feathers of
migratory game birds taken under authority of this part; and
(b) No person shall purchase, sell, barter, or offer to purchase,
sell, or barter mounted specimens of migratory game birds taken under
authority of this part.
[38 FR 22021, Aug. 15, 1973, as amended at 45 FR 70275, Oct. 23, 1980]
Sec.20.92 Personal use of feathers or skins.
Any person for his own use may possess, transport, ship, import, and
export without a permit the feathers and skins of lawfully taken
migratory game birds.
Subpart K_Annual Seasons, Limits, and Shooting Hours Schedules
Sec.20.100 General provisions.
(a) The taking, possession, transportation, and other uses of
migratory game birds by hunters is generally prohibited unless it is
specifically provided for under regulations developed in accordance with
the Migratory Bird Treaty Act. Consequently, hunting is prohibited
unless regulatory schedules are established for seasons, daily bag and
possession limits, and shooting (or hawking) hours. Migratory game bird
population levels, including production and habitat conditions, vary
annually. These conditions differ over North America, and within the
United States, by flyways, States, and frequently areas within States.
Thus, it is necessary to make annual adjustments in the schedules to
limit the harvests of migratory game birds to permissible levels.
(b) The development of these schedules involves annual data
gathering programs to determine migratory game bird population status
and trends, evaluations of habitat conditions, harvest information, and
other factors having a bearing on the anticipated size of the fall
flights of these birds. The proposed hunting schedules are announced
early in the spring, and following consideration of additional
information as it becomes available, as well as public comment, they are
modified and published as supplemental proposals. These are also open to
public comment. Public hearings are held for the purpose of providing
additional opportunity for public participation in the rulemaking
process.
[44 FR 7147, Feb. 6, 1979]
Sec.20.101 Seasons, limits and shooting hours for Puerto Rico
and the Virgin Islands.
This section provides for the annual hunting of certain doves,
pigeons, ducks, coots, gallinules and snipe in Puerto Rico; and for
certain doves, pigeons and ducks in the Virgin Islands. In these
Commonwealths, the hunting of waterfowl and coots (and other certain
species, as applicable) must be
[[Page 60]]
with the use of nontoxic shot beginning in the 1991-92 waterfowl season.
[53 FR 24290, June 28, 1988]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.102 Seasons, limits, and shooting hours for Alaska.
This section provides for the annual hunting of certain waterfowl
(ducks, tundra swans, geese, and brant), common snipe, and sandhill
cranes in Alaska. In Alaska, the hunting of waterfowl must be with the
use of nontoxic shot beginning in the 1991-92 waterfowl season.
[55 FR 35267, Aug. 28, 1990]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.103 Seasons, limits, and shooting hours for mourning and
white-winged doves and wild pigeons.
This section provides for the annual hunting of certain doves and
pigeons in the 48 contiguous United States. The mourning dove hunting
regulations are arranged by the Eastern, Central, and Western Management
Units.
[44 FR 7147, Feb. 6, 1979]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.104 Seasons, limits, and shooting hours for rails, woodcock,
and common (Wilson's) snipe.
This section provides for the annual hunting of certain rails,
woodcock, and snipe in the 48 contiguous United States.
[44 FR 7148, Feb. 6, 1979]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.105 Seasons, limits and shooting hours for waterfowl, coots,
and gallinules.
This section provides for the annual hunting of certain waterfowl
(ducks, geese [including brant]), coots and gallinules in the 48
contiguous United States. The regulations are arranged by the Atlantic,
Mississippi, Central and Pacific Flyways. These regulations often vary
within Flyways or States, and by time periods. Those areas of the United
States outside of State boundaries, i.e., the United States' territorial
waters seaward of county boundaries, and including coastal waters
claimed by the separate States, if not already included under the zones
contained in Sec.20.108, are designated for the purposes of Sec.
20.21(j) as nontoxic shot zones for waterfowl hunting beginning in the
1991-92 season.
[53 FR 24290, June 28, 1988, as amended at 56 FR 22102, May 13, 1991]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.106 Seasons, limits, and shooting hours for sandhill cranes.
This section provides for the annual hunting of sandhill cranes in
designated portions of the 48 contiguous United States.
[55 FR 35267, Aug. 28, 1990]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.107 Seasons, limits, and shooting hours for tundra swans.
This section provides for the annual hunting of tundra swans in
designated portions of the 48 contiguous United States.
[55 FR 39829, Sept. 28, 1990]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
[[Page 61]]
Sec.20.108 Nontoxic shot zones.
Beginning September 1, 1991, the contiguous 48 United States, and
the States of Alaska and Hawaii, the Territories of Puerto Rico and the
Virgin Islands, and the territorial waters of the United States, are
designated for the purpose of Sec.20.21(j) as nontoxic shot zones for
hunting waterfowl, coots and certain other species. ``Certain other
species'' refers to those species, other than waterfowl or coots, that
are affected by reason of being included in aggregate bags and
concurrent seasons.
[56 FR 22102, May 13, 1991]
Sec.20.109 Extended seasons, limits, and hours for taking migratory
game birds by falconry.
This section provides annual regulations by which falconers may take
permitted migratory game birds.
[44 FR 7148, Feb. 6, 1979]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Sec.20.110 Seasons, limits, and other regulations for certain Federal
Indian reservations, Indian Territory, and ceded lands.
This section provides for establishing annual migratory bird hunting
regulations for certain tribes on Federal Indian reservations, Indian
Territory, and ceded lands.
[50 FR 35764, Sept. 3, 1985]
Editorial Note: For Federal Register citations affecting annual
regulatory schedules for this section, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed
volume and at www.govinfo.gov.
Subpart L_Administrative and Miscellaneous Provisions
Sec.20.131 Extension of seasons.
Whenever the Secretary shall find that emergency State action to
prevent forest fires in any extensive area has resulted in the
shortening of the season during which the hunting of any species of
migratory game bird is permitted and that compensatory extension or
reopening the hunting season for such birds will not result in a
diminution of the abundance of birds to any greater extent than that
contemplated for the original hunting season, the hunting season for the
birds so affected may, subject to all other provisions of this
subchapter, be extended or reopened by the Secretary upon request of the
chief officer of the agency of the State exercising administration over
wildlife resources. The length of the extended or reopened season in no
event shall exceed the number of days during which hunting has been so
prohibited. The extended or reopened season will be publicly announced.
Sec.20.132 Subsistence use in Alaska.
In Alaska, any person may, for subsistence purposes, take, possess,
and transport, in any manner, from September 1 through April 1, snowy
owls and cormorants for food and their skins for clothing, but birds and
their parts may not be sold or offered for sale.
[68 FR 43027, July 21, 2003]
Sec.20.133 Hunting regulations for crows.
(a) Crows may be taken, possessed, transported, exported, or
imported, only in accordance with such laws or regulations as may be
prescribed by a State pursuant to this section.
(b) Except in the State of Hawaii, where no crows shall be taken,
States may by statute or regulation prescribe a hunting season for
crows. Such State statutes or regulations may set forth the method of
taking, the bag and possession limits, the dates and duration of the
hunting season, and such other regulations as may be deemed appropriate,
subject to the following limitations for each State:
(1) Crows shall not be hunted from aircraft;
(2) The hunting season or seasons on crows shall not exceed a total
of 124 days during a calendar year;
(3) Hunting shall not be permitted during the peak crow nesting
period within a State; and
(4) Crows may only be taken by firearms, bow and arrow, and
falconry.
[[Page 62]]
Sec.20.134 Approval of nontoxic shot types and shot coatings.
The U.S. Fish and Wildlife Service conducts a process to approve
shot material determined not to impose a significant toxicity danger to
migratory birds and other wildlife or their habitats. The regulations in
this section set forth the approval process. Upon receipt of an
application and supporting data submitted in accordance with this
section, the Service will review the application materials together with
all other relevant available evidence, including public comment. If the
Director concludes that the spent shot material will not present a
significant toxicity danger to migratory birds and other wildlife or
their habitats, we will add the shot material to the list of approved
nontoxic shot materials at 50 CFR 20.21(j).
(a) Information collection approval. The Office of Management and
Budget approved the information collection requirements contained in
this section under 44 U.S.C. 3501 et seq. and assigned OMB Control No.
1018-0067. We collect this information so that we can conduct a
methodical and objective review of a shot type you submit as nontoxic
for hunting waterfowl. An agency may not conduct or sponsor and you are
not required to respond to a collection of information unless it
displays a currently valid OMB control number. You may submit comments
on this information collection to the Service Information Collection
Officer, U.S. Fish and Wildlife Service, 1849 C Street NW., Washington,
DC 20240.
(b) Limitations on nontoxic shot type approval. We will not approve
as nontoxic any shot type or shot coating with a lead content of 1
percent or more.
(1) Before we will approve any shot type or shot coating as
nontoxic, a shotshell loaded with the shot type or coated shot must be
demonstrated to be identifiable as not being lead in a portable field
testing device for use by enforcement officers.
(2) The testing device can be regular magnets, rare-earth magnets,
or the ``HOT*SHOT'' field-testing device from Stream Systems of Concord,
CA. We will consider other field-testing devices that may be readily
available to law enforcement officers.
(c) Application submission and review. We use a 3-tier strategy for
approval of nontoxic shot types and shot coatings. You must submit any
application for approval under this section with supporting
documentation in accordance with the following procedures and must
include at least the supporting materials and information for Tier 1 in
the approval system. If your application is not complete, we will return
it to you with an explanation of the additional information we need to
initiate review of your submission.
(d) Tier 1 application fee. The fee for consideration of a Tier 1
application is $1,630. Submit the fee, payable to the U.S. Fish and
Wildlife Service, with your application.
(e) Tier 1 application. If you wish to submit a shot type or shot
coating for consideration as nontoxic for waterfowl hunting, you must
provide statements of use, chemical characterization, production
variability, volume of use of the candidate material, and a sample of
the shot or shot coating.
(1) Provide a statement of how you propose to use the candidate
material in creating waterfowl hunting shotshells.
(2) Provide a description of the chemical composition of the
material comprising the shot.
(i) Provide the chemical names, Chemical Abstracts Service numbers
(consult the American Chemical Society), and structures of the
components of the shot.
(ii) Provide a chemical characterization for organics and
organometallics for the core and/or coating, including the empirical
formula, melting point, molecular weight, solubility, specific gravity,
partition coefficients, hydrolysis half-life, leaching rate in water and
in soil, degradation half-life, vapor pressure, stability, and other
relevant characteristics for each component.
(iii) Provide data on the composition, weight, and sectional density
of the shot material.
(iv) Provide data on the thickness, quantity in milligrams (mg) per
shot, and chemical composition of any coating on the shot.
[[Page 63]]
(3) Provide documentation that the shot can be readily identified as
nontoxic with a standard field shotshell testing device.
(4) Provide a statement of the hardness of the candidate shot type
and the method used to determine the hardness.
(5) Provide a statement of the expected variability of shot during
production.
(6) Provide an estimate of yearly volume of candidate shot type and/
or coated shot expected to be produced for use in hunting migratory
birds in the United States.
(7) Provide 5 pounds (approximately 2.18 kilograms (kg)) of the
candidate shot type or shot with the proposed coating in size equivalent
to U.S. standard size No. 4 of 0.13 inches (approximately 3.3
millimeters (mm)) in diameter.
(i) We or an independent laboratory may analyze the composition of
the shot or the shot coating.
(ii) We will reject your application if the composition of the shot
or shot coating differs substantially from what you describe in your
application.
(f) Toxicological effects. You must provide information on the
toxicological effects of the shot or any coating on it.
(1) Provide a summary of the acute and chronic toxicity data of the
metals or compounds in the shot or the shot coating, ranking the
toxicity of each. Use the following criteria to assess the toxicity of
the shot or shot coating. These criteria are based on the estimated
median lethal dose of the candidate shot type or shot coating. That is,
the statistically derived single dose estimate of the candidate material
that can be expected to cause death in 50 percent of the animals tested
(LD50).
------------------------------------------------------------------------
If the LD50 is the material is considered
------------------------------------------------------------------------
no more than 5 mg/kg,..................... super toxic.
over 5 to 50 mg/kg,....................... extremely toxic.
over 50 to 500 mg/kg,..................... very toxic.
over 500 to 5,000 mg/kg,.................. moderately toxic.
over 5,000 to 15,000 mg/kg,............... slightly toxic.
over 15,000 mg/kg,........................ nontoxic.
------------------------------------------------------------------------
(2) Provide a summary of known acute, chronic, and reproductive
toxicological data of the chemicals comprising the shot or shot coating
with respect to birds, particularly waterfowl. Include LD50 or LC50
(concentrations in water lethal to 50 percent of test populations) data,
and sublethal effects, with citations.
(3) Provide a narrative description, with citations to relevant
data, predicting the toxic effect in waterfowl of complete erosion and
absorption of one shot or coated shot in a 24-hour period. Define the
nature of the toxic effect, such as mortality, impaired reproduction,
substantial weight loss, disorientation, or other relevant associated
clinical observations.
(4) Provide a statement with supporting rationale and citations to
relevant data about whether ingestion of the shot or shot coating by
invertebrates, fish, amphibians, reptiles, or mammals is cause for
concern. If there is a recognized impact on invertebrates, fish,
amphibians, reptiles, or mammals, we reserve the right to require
additional study of the shot or shot coating.
(g) Environmental fate and transport. You must provide information
on the environmental fate and transport, if any, of the shot and any
coating on it.
(1) Provide a statement describing any chemical or physical
alteration of the shot and shot coating upon firing.
(2) Provide an estimate of the environmental half-life of the
organic or organometallic components of the shot and shot coating, and a
description of the chemical form of the breakdown products of the
component(s).
(3) For each metal or other component of the shot or shot coating,
determine the Estimated Environmental Concentration (EEC).
(i) Determine the EEC in a terrestrial ecosystem if 69,000 U.S.
standard size No. 4 shot of 0.13 in (3.3 mm) in diameter are completely
dissolved in 1 hectare (ha) (107,639 square feet (ft\2\)) of soil 5
centimeters (cm) (1.97 in) deep. Assess whether the EEC would exceed the
clean soil standards for the Use or Disposal of Sewage Sludge at 40 CFR
part 503. Explain how the estimated EEC relates to the toxicity
thresholds for plants, invertebrates, and other wildlife.
(ii) Determine the EEC in an aquatic ecosystem if 69,000 U.S.
standard size No. 4 shot of 0.13 in (3.3 mm) in diameter are completely
dissolved in 1 ha, or
[[Page 64]]
107,639 ft\2\, of water 1 ft (30.48 cm) deep. Express the calculated
concentrations in standard units such as micrograms per liter, for water
with pH of 6.5 to 9.0. Explain how the estimated EEC compares to the
U.S. Environmental Protection Agency (EPA) Water Quality Criteria and
toxicity thresholds in plants, invertebrates, fish, and wildlife.
(4) Conduct a risk assessment using the Quotient Method. Calculate
the risk of the submitted shot material, the EEC/the Toxicological Level
of Concern. For example, compare the EEC in parts per million (p/m) to
an effect level such as the LD50 in p/m. Use the following criteria to
assess the risk of the components of the shot or shot coating.
------------------------------------------------------------------------
If the risk ratio is then
------------------------------------------------------------------------
less than 0.1,............................ adverse effects are not
likely.
0.1 to 10.0,.............................. adverse effects are
possible.
greater than 10.0,........................ adverse effects are likely.
------------------------------------------------------------------------
(h) In vitro evaluation. You must evaluate the candidate shot type
or shot coating in a standardized test under conditions that will assess
its erosion and any release of components into a liquid medium in an
environment simulating the conditions of a waterfowl gizzard (see W.H.
Kimball and Z.A. Munir, 1971, The corrosion of lead shot in a simulated
waterfowl gizzard, Journal of Wildlife Management 35:360-365) for basic
test procedures. Compare the erosion characteristics to those of lead
shot and steel shot of comparable size.
(1) Test materials. You will need appropriate analysis equipment,
such as for atomic absorption spectrophotometry or inductively coupled
plasma mass spectrometry, a drilled aluminum block to support test
tubes, a thermostatically controlled stirring hot plate, small
Teflon[supreg]-coated magnets, hydrochloric acid of pH 2.0, pepsin,
capped test tubes, and U.S. No. 4 lead, steel, and candidate shot type
or shot with the proposed coating.
(2) Test procedures.
(i) Add hydrochloric acid and pepsin to each capped test tube at a
volume and concentration that will erode a single U.S. No. 4 lead shot
at the rate of 5 mg per day.
(ii) Place three test tubes, each containing lead shot, steel shot,
or the candidate shot type or shot with the proposed coating in an
aluminum block on the stirring hot plate. Add a Teflon[supreg]-coated
magnet to each test tube and set the hot plate at 42 degrees Centigrade
and 500 revolutions per minute.
(iii) Determine the erosion of shot or shot with the proposed
coating daily for 14 consecutive days by weighing the shot and analyzing
the digestion solution with an atomic absorption spectrophotometer.
(iv) Replicate the 14-day procedure five times.
(3) Test analyses. Compare erosion rates of the three types of shot
by appropriate analysis of variance and regression procedures. The
statistical analyses will determine whether the rate of erosion of the
shot and/or shot coating is significantly greater or less than that of
lead and/or steel shot. This determination is important to any
subsequent toxicity testing.
(i) Tier 1 application review. Upon receipt of your completed Tier 1
application, we will promptly perform an overview. We will notify you
within 30 days of receipt that our thorough review of the application
will commence, and we will complete our review within 60 days of the
date of publication. We will use half of the LD50/ft\2\ in terrestrial
and aquatic systems as the level of concern in evaluating your
application.
(j) Approval after Tier 1 testing. If we determine that the Tier 1
data show that the shot or shot coating does not pose a significant
toxicity danger to migratory birds, other wildlife, or their habitats,
we will notify you and request payment of a $20,000 final review and
publication fee (payable to the U.S. Fish and Wildlife Service).
(1) After receipt of payment, we will publish a proposed rule in the
Federal Register stating that we intend to approve this shot or shot
coating as nontoxic and provide the public with the opportunity to
comment on our decision. The proposed rule will include a description of
the chemical composition of the shot or shot coating and a synopsis of
findings under the standards required by Tier 1.
(2) If, after considering public comment on the proposed rule, we
conclude that the shot or shot coating does not pose a significant
toxicity danger to
[[Page 65]]
migratory birds, other wildlife, or their habitats, we will approve the
shot or coating as nontoxic with publication of a final rule in the
Federal Register and addition of the shot or coating to the list in
Sec.20.21(j).
(k) Additional testing. If we conclude that the Tier 1 data are
inconclusive, or if we conclude that the shot or shot coating may pose a
significant toxicity danger to migratory birds, other wildlife, or their
habitats, we will advise you to proceed with some or all of the
additional testing described for Tier 2, Tier 3, or both.
(1) We will inform you that we consider the Tier 1 test results to
be inconclusive. We will request Tier 2, and possibly Tier 3, testing
before we evaluate the shot any further.
(2) If you choose not to do further testing, we will deny approval
of the candidate shot type or shot coating.
(l) Tier 2 application fee. The fee for consideration of a Tier 2
application is $1,530. Submit the fee, payable to the U.S. Fish and
Wildlife Service, with your application.
(m) Tier 2 testing. Your Tier 2 testing procedures must be in
compliance with the Good Laboratory Practice Standards (40 CFR part 160)
except where they conflict with the requirements in this section or with
a provision of an approved plan. We reserve the right for us or an
authorized representative to inspect your laboratory facilities. We will
not approve the plan and will cease further consideration of the
candidate shot type if the laboratory does not meet the Good Laboratory
Practice Standards.
(n) Tier 2 plan review. We will review the Tier 2 testing plan you
submit within 30 days of the day on which we receive it. We may decline
to approve the plan, or any part of it, if we deem it deficient in any
manner with regard to timing, format, or content. We will inform you
regarding what parts, if any, of the submitted testing procedures to
disregard and any modifications to incorporate into the Tier 2 testing
plan to gain plan approval. After we accept your plan, you may conduct
Tier 2 testing.
(o) Tier 2 in vivo evaluation. Conduct a 30-day acute toxicity test
in mallards using the following method unless we specify otherwise. The
testing should be done in accordance with Good Laboratory Practices
Standards at 40 CFR part 160.
(1) Test materials. You will need 30 male and 30 female hand-reared
mallards approximately 6 to 8 months old with plumage and body
conformation of wild mallards; 60 elevated outdoor pens equipped with
feeders and waterers; a laboratory equipped to perform fluoroscopy,
required blood and tissue assays, and necropsies; commercial duck
maintenance mash; and lead, steel, and candidate shot type.
(2) Test procedures.
(i) House the mallards individually in pens and give them
unrestricted access to food and water.
(ii) After 3 weeks, randomly assign them to 3 groups of 10 males and
10 females per group. Dose each duck with 8 pellets of either U.S. No. 4
lead shot (positive control), steel shot (negative control), or the
candidate shot type or shot with the proposed coating.
(iii) Fluoroscope each bird at 1 week after dosing to check for shot
retention.
(iv) For 30 days, observe the birds daily for signs of intoxication
and mortality.
(v) Determine the body weight for each bird at the time of dosing
and at days 15 and 30.
(vi) On days 15 and 30, collect blood by venipuncture and determine
hematocrit, hemoglobin concentration, and other measures of blood
chemistry.
(vii) Euthanize all survivors on day 30. Remove the liver and other
appropriate organs from each bird and those from birds that died prior
to day 30.
(viii) Analyze the organs for lead and compounds contained in the
candidate shot type or shot with the proposed coating.
(ix) Perform a necropsy of all birds to determine any gross and/or
microscopic pathological conditions.
(x) Weigh all recovered shot and determine shot erosion.
(3) Test analyses.
(i) Analyze mortality among the specified groups with appropriate
statistical procedures, such as chi-square, with [alpha] = 0.05, and
[beta] = 0.8.
(ii) Analyze physiological data and tissue contaminant data by
analysis of
[[Page 66]]
variance or other appropriate statistical procedures to include the
factors of shot type and sex, with [alpha] = 0.05 and [beta] = 0.8.
(iii) Compare euthanized birds and birds that died prior to day 30
whenever sample sizes are adequate for meaningful comparison.
(p) Daphnia and fish early-life toxicity tests. Determine the
toxicity of the compounds that comprise the shot or shot coating (at
conditions maximizing solubility without adversely affecting controls)
to selected invertebrates and fish. These methods are subject to the
environmental effects test regulations developed under the authority of
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), as follows:
(1) The first test, the Daphnia (Daphnia species) Acute Toxicity
Test, must be conducted in accordance with 40 CFR 797.1300. It provides
data on the acute toxicity of chemical substances. The guideline
prescribes an acute toxicity test in which Daphnia are exposed to a
chemical in static and flow-through systems for assessing the hazard the
compound(s) may present to an aquatic environment.
(2) The second test, the Daphnia Chronic Toxicity Test, must be
conducted in accordance with 40 CFR 797.1330. It provides data on the
chronic toxicity of chemical substances in which Daphnia are exposed to
a chemical in a renewal or flow-through system. The data from this test
also are used to assess the hazard that the compound(s) may present to
an aquatic environment.
(3) The third test, the Fish Early-Life-Stage Toxicity Test, must be
conducted in accordance with 40 CFR 797.1600. It assesses the adverse
effects of chemical substances to fish in the early stages of their
growth and development. Data from this test also are used to determine
hazards of the compound(s) in an aquatic environment.
(q) Evaluation of Tier 2 testing. If, after Tier 2 testing, you wish
to continue the application process, send the Tier 2 testing results and
analyses to us. You must ensure that copies of all the raw data and
statistical analyses accompany the laboratory reports and final
comprehensive report of this test. We will review the data within 60
days of the day on which we receive your Tier 2 application materials.
(r) Approval after Tier 2 testing. If we determine that the Tier 2
test data show that the shot or shot coating does not pose a significant
toxicity danger to migratory birds, other wildlife, or their habitats,
we will notify you and request payment of a $20,000 final review and
publication fee (payable to the U.S. Fish and Wildlife Service).
(1) After receipt of payment, we will publish a proposed rule in the
Federal Register stating that we intend to approve this shot or shot
coating and provide the public with the opportunity to comment. The
proposed rule will include a description of the chemical composition of
the shot or shot coating and a synopsis of findings under the standards
required by Tier 2.
(2) If, at the end of the comment period, we conclude that the shot
or shot coating does not pose a significant toxicity danger to migratory
birds, other wildlife, or their habitats, we will approve the shot or
coating as nontoxic with publication of a final rule in the Federal
Register and subsequent addition of the shot or coating to the list in
Sec.20.21(j).
(s) Additional testing. If we conclude that the Tier 2 data are
inconclusive, or if we conclude that the shot or shot coating may pose a
significant toxicity danger to migratory birds, other wildlife, or their
habitats, or if public comment on the proposed rule indicates that we
should require further testing, we will advise you to proceed with the
additional testing described for Tier 3. We will require Tier 3 testing
before we evaluate the shot any further. If you choose not to do Tier 3
testing, we will deny approval of the candidate shot type or shot
coating.
(t) Tier 3 application fee. The fee for consideration of a Tier 3
application is $1,530. Submit the fee, payable to the U.S. Fish and
Wildlife Service, with your application.
(u) Tier 3 testing. We will review your Tier 3 testing plan within
30 days of the day on which we receive it. All testing procedures in the
plan should be in compliance with the Good Laboratory Practice Standards
(40 CFR part 160), except where they conflict with the requirements in
this section
[[Page 67]]
or with a provision of an approved plan. We, or our authorized
representative, may elect to inspect your laboratory facilities and may
decline to approve the plan and further consideration of the candidate
shot type and/or shot coating if the facility is not in compliance with
the Good Laboratory Practice Standards.
(1) We will not approve the plan, or any part of it, if we deem it
deficient in any manner with regard to timing, format, or content. We
will tell you what parts, if any, of the submitted testing procedure to
disregard, and any modifications to incorporate into the Tier 3 plan
needed for us to approve it.
(2) After acceptance of the plan, you may conduct the Tier 3
testing. You must ensure that copies of the raw data and the statistical
analyses accompany the laboratory reports and final comprehensive report
on this test.
(i) Chronic toxicity test. This is a long-term toxicity test under
depressed temperature conditions using a nutritionally deficient diet.
Conduct a chronic exposure test under adverse conditions that complies
with the following general guidelines unless we tell you otherwise.
(A) Test materials. You will need 36 male and 36 female hand-reared
mallards approximately 6 to 8 months old with plumage and body
conformation of wild mallards; 72 elevated outdoor pens equipped with
feeders and waterers; a laboratory equipped to perform fluoroscopy,
required blood and tissue assays, and necropsies; whole kernel corn; and
lead, steel, and candidate shot type or shot with the proposed coating.
(B) Test procedures. (1) Conduct this test at a location where the
mean monthly low temperature during December through March is between 20
and 40 degrees Fahrenheit (-6.6 and 4.4 degrees Centigrade,
respectively).
(2) Assign individual mallards to elevated outdoor pens during the
first week of December and give them an unrestricted diet of whole
kernel corn for 2 weeks.
(3) Randomly assign birds to five groups--a lead group of 4 males
and 4 females, and 4 other groups of 8 males and 8 females per group.
(4) Dose each bird in the lead group (the positive control) with one
U.S. No. 4 pellet of lead shot. Dose each bird in one group of 8 males
and 8 females with 8 U.S. No. 4 pellets of steel shot (the negative
control). Dose each bird in 1 remaining group of 8 males and 8 females
with one U.S. No. 4 pellet of the candidate shot type or shot with the
proposed coating, each bird in 1 of the remaining 2 groups of 8 males
and 8 females with 4 U.S. No. 4 pellets of the candidate shot type or
shot with the proposed coating, and each bird in the final group of 8
males and 8 females with 8 U.S. No. 4 pellets of the candidate shot type
or shot with the proposed coating.
(5) Weigh and fluoroscope the birds weekly.
(6) Weigh all recovered shot and determine shot erosion.
(7) Determine blood parameters given in the 30-day acute toxicity
test. Provide body weight and blood parameter measurements on samples
drawn at 24 hours after dosing, and at the end of days 30 and 60.
(8) Remove the liver and other appropriate organs from all birds
that die prior to day 60.
(9) At the end of 60 days, euthanize all survivors. Remove the liver
and other appropriate organs from the euthanized birds. Analyze the
organs for lead and other metals in the candidate shot type or shot
coating.
(10) Necropsy all birds that died prior to day 60 to determine any
gross and/or microscopic pathological conditions associated with their
deaths.
(C) Test analyses. (1) Analyze mortality among the specified groups
with appropriate chi-square statistical procedures. Any effects on the
previously mentioned physiological parameters caused by the shot or shot
coating must be significantly less than those caused by lead shot and
must not be significantly greater than those caused by steel shot, with
[alpha] = 0.05, and [beta] = 0.8.
(2) Analyze physiological data and tissue contaminant data by
analysis of variance or appropriate statistical procedures to include
the factors of shot type, dose, and sex with [alpha] = 0.05, and [beta]
= 0.8.
(3) Compare euthanized birds and birds that died prior to being
[[Page 68]]
euthanized whenever sample sizes are adequate for a meaningful
comparison.
(ii) Chronic dosing study. This moderately long-term study includes
an assessment of reproduction. Conduct a chronic exposure reproduction
trial within the following general guidelines unless we tell you
otherwise.
(A) Test materials. You will need 44 male and 44 female hand-reared
first-year mallards with plumage and body conformation of wild mallards;
pens suitable for quarantine and acclimation and for reasonably holding
5 to 10 ducks each; 44 elevated pens equipped with feeders, waterers,
and nest boxes; a laboratory equipped to perform fluoroscopy, required
blood and tissue assays, and necropsies; whole kernel corn, and
commercial duck maintenance and breeder mash; and U.S. No. 4 lead,
steel, and candidate shot type or shot with the proposed coating.
(B) Test procedures. (1) In December, randomly assign the mallards
to 3 groups--a positive control group of 4 males and 4 females that will
be tested with lead; a negative control group of 20 males and 20 females
that will be tested with steel; and a final group with 20 males and 20
females that will be tested with the candidate shot type or shot with
the proposed coating. Hold the ducks in same-sex groups until mid-
January. If the test is not conducted in the northern United States or
comparable latitudes, the test must be completed in low-temperature
units.
(2) After a 3-week acclimation period in which the ducks are fed
with commercial maintenance mash, provide them an unrestricted diet of
corn for 60 days and then pair them, put one pair in each pen, and
provide them with commercial breeder mash.
(3) After the acclimation period, dose each bird in the lead group
with 1 pellet of U.S. No. 4 lead shot, each bird in one of the groups of
20 males and 20 females with 8 pellets of U.S. No. 4 steel shot, and
each bird in the remaining group of 20 males and 20 females with 8
pellets of U.S. No. 4 candidate shot type or shot with the proposed
coating.
(4) Redose each bird with the appropriate shot after 30, 60, and 90
days. Few, if any, of the lead-dosed birds should survive and reproduce.
(5) Fluoroscope each bird 1 week after dosing it to check for shot
retention.
(6) Weigh each bird the day of initial dosing (day 0), at each
subsequent dosing, and at death.
(7) Collect a blood sample from each bird on the days on which it is
dosed and immediately prior to euthanizing it.
(8) Check nests daily and collect any eggs laid. Note the date of
first egg laid and the mean number of days per egg laid. Conclude
monitoring of laying after 21 normal, uncracked eggs are laid or after
150 days.
(9) Collect eggs and discard any eggs laid before pairing.
(10) Euthanize the adults after they complete laying or after 150
days.
(11) Remove the liver and other appropriate organs from each
euthanized bird and from each bird that dies prior to being euthanized.
(12) Analyze the organs and the eleventh egg for compounds contained
in the shot or shot coating.
(13) Necropsy all the birds to determine any gross and/or
microscopic pathological conditions that affected them.
(14) Artificially incubate the normal eggs and calculate the percent
shell thickness for each (compared to typical shell thickness), the
percent of eggs cracked, the percent fertility (as determined by
candling), and the percentage of fertile eggs hatched for each female.
(15) Provide ducklings that hatch with starter mash. Euthanize all
ducklings at 14 days of age.
(16) Determine survival to day 14 and weight of the ducklings at
hatching and at being euthanized.
(17) Measure duckling blood for hemoglobin concentration and other
blood chemistries using blood samples drawn when the ducklings are
euthanized.
(C) Test analyses. Any mortality, reproductive inhibition, or
effects on physiological parameters due to the shot or shot coating must
not be significantly greater than those caused by steel shot. If
necessary, transform percentage data with an arcsine, square root, or
other suitable transformation prior to statistical analyses. Analyze the
physiological and reproductive
[[Page 69]]
data with one-tailed t-tests or other appropriate statistical procedures
with [alpha] = 0.05, and [beta] = 0.8.
(v) Evaluation of Tier 3 testing. Report the results of your Tier 3
testing to us. We will review the data within 60 days of the day on
which we receive your Tier 3 application materials. You must ensure that
copies of the raw data and the statistical analyses accompany the
laboratory reports and final comprehensive report on this test.
(w) Approval after Tier 3 testing. If we determine that the Tier 3
test data show that the shot or shot coating does not pose a significant
toxicity danger to migratory birds, other wildlife, or their habitats,
we will notify you and request payment of a $20,000 final review and
publication fee (payable to the U.S. Fish and Wildlife Service).
(1) After receipt of payment, we will publish a proposed rule in the
Federal Register stating that we intend to approve this shot or shot
coating and provide the public with the opportunity to comment. The
proposed rule will include a description of the chemical composition of
the shot or shot coating and a synopsis of findings under the standards
required by Tier 3.
(2) If, at the end of the comment period, we conclude that the shot
or shot coating does not pose a significant toxicity danger to migratory
birds, other wildlife, or their habitats, we will approve the shot or
coating as nontoxic with publication of a final rule in the Federal
Register and subsequent addition of the shot or coating to the list in
Sec.20.21(j).
(x) Additional testing after Tier 3. If we conclude that the Tier 3
data are inconclusive, or if we conclude that the shot or shot coating
may pose a significant toxicity danger to migratory birds, other
wildlife, or their habitats, we may ask you to repeat tests we deem
inconclusive. If you choose not to repeat the tests, we will deny
approval of the candidate shot type or shot coating.
(y) Denial after Tier 3 testing. If we conclude that the shot or
shot coating may pose a significant toxicity danger to migratory birds,
other wildlife, or their habitats, we will notify you that we deny
approval of the candidate shot type or shot coating.
(z) Withdrawal of the approval of a shot type or shot coating. If we
find that an approved shot type or shot coating is not readily
detectable in the field or has environmental effects or direct
toxicological effects on biota, we may withdraw our approval of the shot
type or shot coating. This includes any previously approved shot type or
shot coating.
(1) We may consult the Service Law Enforcement Laboratory to
determine whether any particular shot type or shot coating is readily
detectable in the field by law enforcement officers. If the shot type is
not readily detectable in the field, we will give the shotshell producer
180 days to remedy the situation by improving either the shot or the
detection method.
(2) We may consider new evidence, consistent with the provisions of
the Migratory Bird Treaty Act and the Information Quality Act (Pub. L.
106-554, 2001; Office of Management and Budget Guidance, 67 FR 8452-
8460, February 22, 2002) that shows that an approved shot type or shot
coating has significant environmental effects or direct toxicological
effects that were not known when we approved the shot type or shot
coating.
(3) After the 180-day period for a shot type that cannot be tested
in the field (see paragraph (z)(1) of this section), or at any time
after we learn of significant environmental effects or direct
toxicological effects, we will publish a notice in the Federal Register
informing manufacturers and the public of our pending withdrawal of the
approval of the shot type or shot coating. We will revise the table of
approved shot types at Sec.20.21(j) to reflect the withdrawal of the
approval, to be effective on January 1st, after allowing manufacturers 1
full calendar year to prepare for the change.
[78 FR 78280, Dec. 26, 2013]
Subpart M [Reserved]
Subpart N_Special Procedures for Issuance of Annual Hunting Regulations
Source: 46 FR 62079, Dec. 22, 1981, unless otherwise noted.
[[Page 70]]
Sec.20.151 Purpose and scope.
The rules of this subpart N apply to the issuance of the annual
regulations establishing seasons, bag limits, and other requirements for
the seasonal hunting of migratory birds. The rules of this subpart N do
not apply to the issuance of regulations under part 21 of this title or
under subparts A through J and L through M of this part 20.
Sec.20.152 Definitions.
As used in this subpart N:
(a) Flyway Council means the Atlantic, Mississippi, Central, or
Pacific Flyway Council;
(b) Regulations Committee means the Migratory Bird Regulations
Committee of the Fish and Wildlife Service; and
(c) Significant, as used in reference to a communication or other
form of information or data, means related to the merits of the
regulation and received, utilized, or transmitted by an official of the
Department who is or may reasonably be expected to be involved in the
decisional process on the regulation.
Sec.20.153 Regulations committee.
(a) Notice of meetings. Notice of each meeting of the Regulations
Committee to be attended by any person outside the Department will be
published in the Federal Register at least two weeks before the meeting.
The notice will state the time, place, and general subject(s) of the
meeting, as well as the extent of public involvement.
(b) Public observation and written comment. Each meeting of the
Regulations Committee for which notice is published pursuant to
paragraph (a) of this section will be open to the public for observation
and the submission of written comments.
(c) Public participation. Except for the mid-summer meetings held in
Washington, DC, in conjuction with the public hearing on waterfowl and
other late season frameworks, the public may participate in any meeting
of the Regulations Committee for which notice is published pursuant to
paragraph (a) of this section through the submission of oral statements
that comply with the rules stated in the notice.
(d) Minutes of meetings. Minutes will be made of each meeting of the
Regulations Committee for which notice is published pursuant to
paragraph (a) of this section.
Sec.20.154 Flyway Councils.
(a) Notice of meetings. Notice of each meeting of a Flyway Council
to be attended by any official of the Department will be published in
the Federal Register at least two weeks before the meeting or as soon as
practicable after the Department learns of the meeting. The notice will
state the time, place, and general subject(s) of the meeting.
(b) [Reserved]
Sec.20.155 Public file.
(a) Establishment. A public file will be established for each
rulemaking to which this subpart N is applicable.
(b) Contents. Except for information exempt from disclosure under 5
U.S.C. 552, a public file established pursuant to paragraph (a) of this
section will contain:
(1) The minutes of Regulations Committee meetings made pursuant to
paragraph (d) of Sec.20.153;
(2) Any written comments and other significant written
communications which occur after the notice of proposed rulemaking;
(3) Summaries, identifying the source, of any significant oral
communications which occure after the notice of proposed rulemaking; and
(4) Copies of or references to any other significant data or
information.
PART 21_MIGRATORY BIRD PERMITS--Table of Contents
Subpart A_Introduction
Sec.
21.1 Purpose of regulations.
21.2 Scope of regulations.
21.3 Definitions.
21.4 Information collection requirements.
Subpart B_General Requirements and Exceptions
21.11 General permit requirements.
21.12 General exceptions to permit requirements.
21.13 Permit exceptions for captive-reared mallard ducks.
21.14 Permit exceptions for captive-bred migratory waterfowl other than
mallard ducks.
[[Page 71]]
21.15 Authorization of take incidental to military readiness activities.
Subpart C_Specific Permit Provisions
21.21 Import and export permits.
21.22 Banding or marking permits.
21.23 Scientific collecting permits.
21.24 Taxidermist permits.
21.25 Waterfowl sale and disposal permits.
21.26 Special Canada goose permit.
21.27 Special purpose permits.
21.28 [Reserved]
21.29 Falconry standards and falconry permitting.
21.30 Raptor propagation permits.
21.31 Rehabilitation permits.
Subpart D_Control of Depredating and Otherwise Injurious Birds
21.41 Depredation permits.
21.42 [Reserved]
21.43 Depredation order for blackbirds, cowbirds, crows, grackles, and
magpies.
21.44 Depredation order for horned larks, house finches, and white-
crowned sparrows in California.
21.45 [Reserved]
21.46 Depredation order for depredating California scrub jays and
Steller's jays in Washington and Oregon.
21.47-21.48 [Reserved]
21.49 Control order for resident Canada geese at airports and military
airfields.
21.50 Depredation order for resident Canada geese nests and eggs.
21.51 Depredation order for resident Canada geese at agricultural
facilities.
21.52 Public health control order for resident Canada geese.
21.53 Control order for purple swamphens.
21.54 Control order for muscovy ducks in the United States.
21.55 Control order for invasive migratory birds in Hawaii.
Subpart E_Control of Overabundant Migratory Bird Populations
21.60 Conservation order for light geese.
21.61 Population control of resident Canada geese.
Authority: 16 U.S.C. 703-712.
Source: 39 FR 1178, Jan. 4, 1974, unless otherwise noted.
Subpart A_Introduction
Sec.21.1 Purpose of regulations.
The regulations contained in this part supplement the general permit
regulations of part 13 of this subchapter with respect to permits for
the taking, possession, transporation, sale, purchase, barter,
importation, exportation, and banding or marking of migratory birds.
This part also provides certain exceptions to permit requirements for
public, scientific, or educational institutions, and establishes
depredation orders which provide limited exceptions to the Migratory
Bird Treaty Act (16 U.S.C. 703-712).
[54 FR 38150, Sept. 14, 1989]
Sec.21.2 Scope of regulations.
(a) Migratory birds, their parts, nests, or eggs, lawfully acquired
prior to the effective date of Federal protection under the Migratory
Bird Treaty Act (16 U.S.C. 703-712) may be possessed or transported
without a permit, but may not be imported, exported, purchased, sold,
bartered, or offered for purchase, sale or barter, and all shipments of
such birds must be marked as provided by part 14 of this subchapter:
Provide, no exemption from any statute or regulation shall accrue to any
offspring of such migratory birds.
(b) This part, except for Sec.21.12(a), (c), and (d) (general
permit exceptions); Sec.21.22 (banding or marking); Sec.21.29
(falconry); and Sec.21.31 (rehabilitation), does not apply to the bald
eagle (Haliaeetus leucocephalus) or the golden eagle (Aquila
chrysaetos), for which regulations are provided in part 22 of this
subchapter.
(c) The provisions of this part are in addition to, and are not in
lieu of other regulations of this subchapter B which may require a
permit or prescribe additional restrictions or conditions for the
importation, exportation, and interstate transportation of wildlife (see
also part 13).
[39 FR 1178, Jan. 4, 1974, as amended at 46 FR 42680, Aug. 24, 1981; 68
FR 61137, Oct. 27, 2003; 73 FR 59465, Oct. 8, 2008]
Sec.21.3 Definitions.
In addition to definitions contained in part 10 of this chapter, and
unless the context requires otherwise, as used in this part:
Armed Forces means the Army, Navy, Air Force, Marine Corps, Coast
Guard, and the National Guard of any State.
Bred in captivity or captive-bred refers to raptors, including eggs,
hatched in captivity from parents that mated or
[[Page 72]]
otherwise transferred gametes in captivity.
Captivity means that a live raptor is held in a controlled
environment that is intensively manipulated by man for the purpose of
producing raptors of selected species, and that has boundaries designed
to prevent raptors, eggs or gametes of the selected species from
entering or leaving the controlled environment. General characteristics
of captivity may include, but are not limited to, artificial housing,
waste removal, health care, protection from predators, and artificially
supplied food.
Conservation measures, as used in Sec.21.15, means project design
or mitigation activities that are reasonable from a scientific,
technological, and economic standpoint, and are necessary to avoid,
minimize, or mitigate the take of migratory birds or other adverse
impacts. Conservation measures should be implemented in a reasonable
period of time.
Falconry is caring for and training raptors for pursuit of wild
game, and hunting wild game with raptors. Falconry includes the taking
of raptors from the wild to use in the sport; and caring for, training,
and transporting raptors held for falconry.
Hacking is the temporary release of a raptor held for falconry to
the wild so that it must survive on its own.
Hybrid means any bird that results from a cross of genetic material
between two separate taxa when one or both are listed at 50 CFR 10.13,
and any progeny of those birds.
Imprint, for the purposes of falconry, means a bird that is hand-
raised, from 2 weeks of age until it has fledged, and has identified
itself with humans rather than its own species. An imprinted bird is
considered to be so for its entire lifetime.
Livestock depredation area means a specific geographic location in
which depredation by golden eagles has been recognized. The boundaries
and duration of a livestock depredation area are declared by U.S.D.A.
Wildlife Services or by a State governor.
Military readiness activity, as defined in Pub. L. 107-314, Sec.
315(f), 116 Stat. 2458 (Dec. 2, 2002) [Pub. L. Sec.319 (c)(1)],
includes all training and operations of the Armed Forces that relate to
combat, and the adequate and realistic testing of military equipment,
vehicles, weapons, and sensors for proper operation and suitability for
combat use. It does not include (a) routine operation of installation
operating support functions, such as: administrative offices; military
exchanges; commissaries; water treatment facilities; storage facilities;
schools; housing; motor pools; laundries; morale, welfare, and
recreation activities; shops; and mess halls, (b) operation of
industrial activities, or (c) construction or demolition of facilities
listed above.
Population, as used in Sec.21.15, means a group of distinct,
coexisting, conspecific individuals, whose breeding site fidelity,
migration routes, and wintering areas are temporally and spatially
stable, sufficiently distinct geographically (at some time of the year),
and adequately described so that the population can be effectively
monitored to discern changes in its status.
Raptor means a migratory bird of the Order Accipitriformes, the
Order Falconiformes, or the Order Strigiformes listed in Sec.10.13 of
this chapter, including the bald eagle (Haliaeetus leucocephalus) and
the golden eagle (Aquila chrysaetos).
Resident Canada geese means Canada geese that nest within the lower
48 States and the District of Columbia or that reside within the lower
48 States and the District of Columbia in the months of April, May,
June, July, or August.
Secretary of Defense means the Secretary of Defense or any other
national defense official who has been nominated by the President and
confirmed by the Senate.
Service or we means the U.S. Fish and Wildlife Service, Department
of the Interior.
Significant adverse effect on a population, as used in Sec.21.15,
means an effect that could, within a reasonable period of time, diminish
the capacity of a population of migratory bird species to sustain itself
at a biologically viable level. A population is ``biologically viable''
when its ability to maintain its genetic diversity, to reproduce, and to
function effectively in its native ecosystem is not significantly
harmed.
[[Page 73]]
This effect may be characterized by increased risk to the population
from actions that cause direct mortality or a reduction in fecundity.
Assessment of impacts should take into account yearly variations and
migratory movements of the impacted species. Due to the significant
variability in potential military readiness activities and the species
that may be impacted, determinations of significant measurable decline
will be made on a case-by-case basis.
[48 FR 31607, July 8, 1983, as amended at 64 FR 32774, June 17, 1999; 71
FR 45986, Aug. 10, 2006; 72 FR 8949, Feb. 28, 2007; 72 FR 46408, Aug.
20, 2007; 73 FR 59465, Oct. 8, 2008; 75 FR 931, Jan. 7, 2010; 78 FR
65578, 65864, Nov. 1, 2013; 84 FR 28773, June 20, 2019]
Sec.21.4 Information collection requirements.
(a) The Office of Management and Budget approved the information
collection requirements contained in this part 21 under 44 U.S.C. 3507
and assigned OMB Control Number 1018-0022. The Service may not conduct
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number. We
are collecting this information to provide information necessary to
evaluate permit applications. We will use this information to review
permit applications and make decisions, according to criteria
established in the Migratory Bird Treaty Act, 16 U.S.C. 703-712 and its
regulations, on the issuance, suspension, revocation, or denial of
permits. You must respond to obtain or retain a permit.
(b) We estimate the public reporting burden for these reporting
requirements to vary from 15 minutes to 4 hours per response, with an
average of 0.803 hours per response, including time for reviewing
instructions, gathering and maintaining data, and completing and
reviewing the forms. Direct comments regarding the burden estimate or
any other aspect of these reporting requirements to the Service's
Information Collection Clearance Officer at the address provided at 50
CFR 2.1(b).
[63 FR 52637, Oct. 1, 1998, as amended at 79 FR 43965, July 29, 2014]
Subpart B_General Requirements and Exceptions
Sec.21.11 General permit requirements.
No person may take, possess, import, export, transport, sell,
purchase, barter, or offer for sale, purchase, or barter, any migratory
bird, or the parts, nests, or eggs of such bird except as may be
permitted under the terms of a valid permit issued pursuant to the
provisions of this part and part 13 of this chapter, or as permitted by
regulations in this part, or part 20 of this subchapter (the hunting
regulations), or part 92 of subchapter G of this chapter (the Alaska
subsistence harvest regulations). Birds taken or possessed under this
part in ``included areas'' of Alaska as defined in Sec.92.5(a) are
subject to this part and not to part 92 of subchapter G of this chapter.
[68 FR 43027, July 21, 2003]
Sec.21.12 General exceptions to permit requirements.
The following persons or entities under the following conditions are
exempt from the permit requirements:
(a) Employees of the Department of the Interior (DOI): DOI employees
authorized to enforce the provisions of the Migratory Bird Treaty Act of
July 3, 1918, as amended (40 Stat. 755; 16 U.S.C. 703-(711), may,
without a permit, take or otherwise acquire, hold in custody, transport,
and dispose of migratory birds or their parts, nests, or eggs as
necessary in performing their official duties.
(b) Employees of certain public and private institutions:
(b)(1) State game departments, municipal game farms or parks, and
public museums, public zoological parks, accredited institutional
members of the American Association of Zoological Parks and Aquariums
(AAZPA) and public scientific or educational institutions may acquire by
gift or purchase, possess, transport, and by gift or sale dispose of
lawfully acquired migratory birds or their progeny, parts, nests, or
eggs without a permit: Provided, That such birds may be acquired only
from persons authorized by this paragraph or by a permit issued pursuant
to this part to possess and dispose of such
[[Page 74]]
birds, or from Federal or State game authorities by the gift of seized,
condemned, r sick or injured birds. Any such birds, acquired without a
permit, and any progeny therefrom may be disposed of only to persons
authorized by this paragraph to acquire such birds without a permit. Any
person exercising a privilege granted by this paragraph must keep
accurate records of such operations showing the species and number of
birds acquired, possessed, and disposed of; the names and addresses of
the persons from whom such birds were acquired or to whom such birds
were donated or sold; and the dates of such transactions. Records shall
be maintained or reproducible in English on a calendar year basis and
shall be retained for a period of five (5) years following the end of
the calendar year covered by the records.
(b)(2) Employees of Federal, State, and local wildlife and land
management agencies; employees of Federal, State, and local public
health agencies; and laboratories under contract to such agencies may in
the course of official business collect, possess, transport, and dispose
of sick or dead migratory birds or their parts for analysis to confirm
the presence of infectious disease. Nothing in this paragraph authorizes
the take of uninjured or healthy birds without prior authorization from
the Service. Additionally, nothing in this paragraph authorizes the
taking, collection, or possession of migratory birds when circumstances
indicate reasonable probability that death, injury, or disability was
caused by factors other than infectious disease and/or natural toxins.
These factors may include, but are not limited to, oil or chemical
contamination, electrocution, shooting, or pesticides. If the cause of
death of a bird is determined to be other than natural causes or
disease, Service law enforcement officials must be contacted without
delay.
(c) Licensed veterinarians: Licensed veterinarians are not required
to obtain a Federal migratory bird permit to temporarily possess,
stabilize, or euthanize sick and injured migratory birds. However, a
veterinarian without a migratory bird rehabilitation permit must
transfer any such bird to a federally permitted migratory bird
rehabilitator within 24 hours after the bird's condition is stabilized,
unless the bird is euthanized. If a veterinarian is unable to locate a
permitted rehabilitator within that time, the veterinarian must contact
his or her Regional Migratory Bird Permit Office for assistance in
locating a permitted migratory bird rehabilitator and/or to obtain
authorization to continue to hold the bird. In addition, veterinarians
must:
(1) Notify the local U.S. Fish and Wildlife Service Ecological
Services Office immediately upon receiving a threatened or endangered
migratory bird species. Contact information for Ecological Services
offices can be located on the Internet at http://offices.fws.gov;
(2) Euthanize migratory birds as required by Sec.21.31(e)(4)(iii)
and Sec.21.31(e)(4)(iv), and dispose of dead migratory birds in
accordance with Sec.21.31(e)(4)(vi); and
(3) Keep records for 5 years of all migratory birds that die while
in their care, including those they euthanize. The records must include:
the species of bird, the type of injury, the date of acquisition, the
date of death, and whether the bird was euthanized.
(d) General public: Any person may remove a migratory bird from the
interior of a building or structure under certain conditions.
(1) You may humanely remove a trapped migratory bird from the
interior of a residence or a commercial or government building without a
Federal permit if the migratory bird:
(i) Poses a health threat (for example, through damage to
foodstuffs);
(ii) Is attacking humans, or poses a threat to human safety because
of its activities (such as opening and closing automatic doors);
(iii) Poses a threat to commercial interests, such as through damage
to products for sale; or
(iv) May injure itself because it is trapped.
(2) You must use a humane method to capture the bird or birds. You
may not use adhesive traps to which birds may adhere (such as glue
traps) or any other method of capture likely to harm the bird.
[[Page 75]]
(3) Unless you have a permit that allows you to conduct abatement
activities with a raptor, you may not release a raptor into a building
to either frighten or capture another bird.
(4) You must immediately release a captured bird to the wild in
habitat suitable for the species, unless it is exhausted, ill, injured,
or orphaned.
(5) If a bird is exhausted or ill, or is injured or orphaned during
the removal, the property owner is responsible for immediately
transferring it to a federally permitted migratory bird rehabilitator.
(6) You may not lethally take a migratory bird for these purposes.
If your actions to remove the trapped migratory bird are likely to
result in its lethal take, you must possess a Federal Migratory Bird
Permit. However, if a bird you are trying to remove dies, you must
dispose of the carcass immediately unless you have reason to believe
that a museum or scientific institution might be able to use it. In that
case, you should contact your nearest Fish and Wildlife Service office
or your State wildlife agency about donating the carcass.
(7) For birds of species on the Federal List of Threatened or
Endangered Wildlife, provided at 50 CFR 17.11(h), you may need a Federal
threatened or endangered species permit before removing the birds (see
50 CFR 17.21 and 50 CFR 17.31).
(8) You must have a permit from your Regional migratory bird permits
office to remove a bald eagle or a golden eagle from a building (see 50
CFR Part 22).
(9) Your action must comply with State and local regulations and
ordinances. You may need a State, Tribal, or Territorial permit before
you can legally remove the bird or birds.
(10) If an active nest with eggs or nestlings is present, you must
seek the assistance of a federally permitted migratory bird
rehabilitator in removing the eggs or nestlings. The rehabilitator is
then responsible for handling them properly.
(11) If you need advice on dealing with a trapped bird, you should
contact your closest Fish and Wildlife Service office or your State
wildlife agency.
[39 FR 1178, Jan. 4, 1974, as amended at 50 FR 8638, Mar. 4, 1985; 54 FR
38151, Sept. 14, 1989; 68 FR 61137, Oct. 27, 2003; 72 FR 56928, Oct. 5,
2007]
Sec.21.13 Permit exceptions for captive-reared mallard ducks.
Captive-reared and properly marked mallard ducks, alive or dead, or
their eggs may be acquired, possessed, sold, traded, donated,
transported, and disposed of by any person without a permit, subject to
the following conditions, restrictions, and requirements:
(a) Nothing in this section shall be construed to permit the taking
of live mallard ducks or their eggs from the wild.
(b) All mallard ducks possessed in captivity, without a permit,
shall have been physically marked by at least one of the following
methods prior to 6 weeks of age and all such ducks hatched, reared, and
retained in captivity thereafter shall be so marked prior to reaching 6
weeks of age.
(1) Removal of the hind toe from the right foot.
(2) Pinioning of a wing: Provided, That this method shall be the
removal of the metacarpal bones of one wing or a portion of the
metacarpal bones which renders the bird permanently incapable of flight.
(3) Banding of one metatarsus with a seamless metal band.
(4) Tattooing of a readily discernible number or letter or
combination thereof on the web of one foot.
(c) When so marked, such live birds may be disposed of to, or
acquired from, any person and possessed and transferred in any number at
any time or place: Provided, That all such birds shall be physically
marked prior to sale or disposal regardless of whether or not they have
attained 6 weeks of age.
(d) When so marked, such live birds may be killed, in any number, at
any time or place, by any means except shooting. Such birds may be
killed by shooting only in accordance with all applicable hunting
regulations governing the taking of mallard ducks from the wild:
Provided, That such birds may be killed by shooting, in any
[[Page 76]]
number, at any time, within the confines of any premises operated as a
shooting preserve under State license, permit, or authorization; or they
may be shot, in any number, at any time or place, by any person for bona
fide dog training or field trial purposes: Provided further, That the
provisions:
(1) The hunting regulations (part 20 of this subchapter), with the
exception of Sec.20.108 (Nontoxic shot zones), and
(2) The Migratory Bird Hunting Stamp Act (duck stamp requirement)
shall not apply to shooting preserve operations as provided for in this
paragraph, or to bona fide dog training or field trial operations.
(e) At all times during possession, transportation, and storage
until the raw carcasses of such birds are finally processed immediately
prior to cooking, smoking, or canning, the marked foot or wing must
remain attached to each carcass: Provided, That persons, who operate
game farms or shooting preserves under a State license, permit, or
authorization for such activities, may remove the marked foot or wing
when either the number of his State license, permit, or authorization
has first been legibly stamped in ink on the back of each carcass and on
the container in which each carcass is maintained, or each carcass is
identified by a State band on leg or wing pursuant to requirements of
his State license, permit, or authorization. When properly marked, such
carcasses may be disposed of to, or acquired from, any person and
possessed and transported in any number at any time or place.
[40 FR 28459, July 7, 1975, as amended at 46 FR 42680, Aug. 24, 1981; 54
FR 36798, Sept. 5, 1989]
Sec.21.14 Permit exceptions for captive-bred migratory waterfowl
other than mallard ducks.
You may acquire captive-bred and properly marked migratory waterfowl
of all species other than mallard ducks (Anas platyrhynchos), alive or
dead, or their eggs, and possess and transport such birds or eggs and
any progeny or eggs for your use without a permit, subject to the
following conditions and restrictions. Additional restrictions on the
acquisition and transfer of muscovy ducks (Cairina moschata) are in
paragraph (g) of this section.
(a) You may acquire live waterfowl or their eggs only from a holder
of a valid waterfowl sale and disposal permit in the United States. You
also may lawfully acquire them outside of the United States with
appropriate permits (see Sec.21.21 of subpart C of this part).
(b) All progeny of captive-bred birds or eggs from captive-bred
birds must be physically marked as set forth in Sec.21.13(b).
(c) You may not transfer or dispose of captive-bred birds or their
eggs, whether alive or dead, to any other person unless you have a
waterfowl sale and disposal permit (see Sec.21.25 of subpart C of this
part).
(d) Lawfully possessed and properly marked birds may be killed, in
any number, at any time or place, by any means except shooting. Such
birds may be killed by shooting only in accordance with all applicable
hunting regulations governing the taking of like species from the wild
(see part 20 of this subchapter).
(e) At all times during possession, transportation, and storage
until the raw carcasses of such birds are finally processed immediately
prior to cooking, smoking, or canning, you must leave the marked foot or
wing attached to each carcass, unless the carcass was marked as provided
in Sec.21.25(b)(6) and the foot or wing was removed prior to your
acquisition of the carcass.
(f) If you acquire captive-bred waterfowl or their eggs from a
waterfowl sale and disposal permittee, you must retain the FWS Form 3-
186, Notice of Waterfowl Sale or Transfer, from the permittee for as
long as you have the birds, eggs, or progeny of them.
(g) You may not acquire or possess live muscovy ducks, their
carcasses or parts, or their eggs, except to raise them to be sold as
food, and except that you may possess any live muscovy duck that you
lawfully acquired prior to March 31, 2010. If you possess muscovy ducks
on that date, you may not propagate them or sell or transfer them to
anyone for any purpose, except to be used as food. You may not release
them to the wild, sell them to be hunted or released to the wild, or
transfer
[[Page 77]]
them to anyone to be hunted or released to the wild.
(h) Dealers in meat and game, hotels, restaurants, and boarding
houses may serve or sell to their customers the carcass of any bird
acquired from a holder of a valid waterfowl sale and disposal permit.
[75 FR 9320, Mar. 1, 2010]
Sec.21.15 Authorization of take incidental to military readiness
activities.
(a) Take authorization and monitoring. (1) Except to the extent
authorization is withdrawn or suspended pursuant to paragraph (b) of
this section, the Armed Forces may take migratory birds incidental to
military readiness activities provided that, for those ongoing or
proposed activities that the Armed Forces determine may result in a
significant adverse effect on a population of a migratory bird species,
the Armed Forces must confer and cooperate with the Service to develop
and implement appropriate conservation measures to minimize or mitigate
such significant adverse effects.
(2) When conservation measures implemented under paragraph (a)(1) of
this section require monitoring, the Armed Forces must retain records of
any monitoring data for five years from the date the Armed Forces
commence their action. During Integrated Natural Resource Management
Plan reviews, the Armed Forces will also report to the Service migratory
bird conservation measures implemented and the effectiveness of the
conservation measures in avoiding, minimizing, or mitigating take of
migratory birds.
(b) Suspension or Withdrawal of take authorization. (1) If the
Secretary determines, after seeking the views of the Secretary of
Defense and consulting with the Secretary of State, that incidental take
of migratory birds during a specific military readiness activity likely
would not be compatible with one or more of the migratory bird treaties,
the Secretary will suspend authorization of the take associated with
that activity.
(2) The Secretary may propose to withdraw, and may withdraw in
accordance with the procedures provided in paragraph (b)(4) of this
section the authorization for any take incidental to a specific military
readiness activity if the Secretary determines that a proposed military
readiness activity is likely to result in a significant adverse effect
on the population of a migratory bird species and one or more of the
following circumstances exists:
(i) The Armed Forces have not implemented conservation measures
that:
(A) Are directly related to protecting the migratory bird species
affected by the proposed military readiness activity;
(B) Would significantly reduce take of the migratory bird species
affected by the military readiness activity;
(C) Are economically feasible; and
(D) Do not limit the effectiveness of the military readiness
activity;
(ii) The Armed Forces fail to conduct mutually agreed upon
monitoring to determine the effects of a military readiness activity on
migratory bird species and/or the efficacy of the conservation measures
implemented by the Armed Forces; or
(iii) The Armed Forces have not provided reasonably available
information that the Secretary has determined is necessary to evaluate
whether withdrawal of take authorization for the specific military
readiness activity is appropriate.
(3) When the Secretary proposes to withdraw authorization with
respect to a specific military readiness activity, the Secretary will
first provide written notice to the Secretary of Defense. Any such
notice will include the basis for the Secretary's determination that
withdrawal is warranted in accordance with the criteria contained in
paragraph (b)(2) of this section, and will identify any conservation
measures or other measures that would, if implemented by the Armed
Forces, permit the Secretary to cancel the proposed withdrawal of
authorization.
(4) Within 15 days of receipt of the notice specified in paragraph
(b)(3) of this section, the Secretary of Defense may notify the
Secretary in writing of the Armed Forces' objections, if any, to the
proposed withdrawal, specifying the reasons therefore. The Secretary
will give due consideration to any objections raised by the Armed
Forces. If the Secretary continues to believe that
[[Page 78]]
withdrawal is appropriate, he or she will provide written notice to the
Secretary of Defense of the rationale for withdrawal and response to any
objections to the withdrawal. If objections to the withdrawal remain,
the withdrawal will not become effective until the Secretary of Defense
has had the opportunity to meet with the Secretary within 30 days of the
original notice from the Secretary proposing withdrawal. A final
determination regarding whether authorization will be withdrawn will
occur within 45 days of the original notice.
(5) Any authorized take incidental to a military readiness activity
subject to a proposed withdrawal of authorization will continue to be
authorized by this regulation until the Secretary makes a final
determination on the withdrawal.
(6) The Secretary may, at his or her discretion, cancel a suspension
or withdrawal of authorization at any time. A suspension may be
cancelled in the event new information is provided that the proposed
activity would be compatible with the migratory bird treaties. A
proposed withdrawal may be cancelled if the Armed Forces modify the
proposed activity to alleviate significant adverse effects on the
population of a migratory bird species or the circumstances in
paragraphs (b)(2)(i) through (iii) of this section no longer exist.
Cancellation of suspension or withdrawal of authorization becomes
effective upon delivery of written notice from the Secretary to the
Department of Defense.
(7) The responsibilities of the Secretary under paragraph (b) of
this section may be fulfilled by his/her delegatee who must be an
official nominated by the President and confirmed by the Senate.
[72 FR 8949, Feb. 28, 2007]
Subpart C_Specific Permit Provisions
Sec.21.21 Import and export permits.
(a) Permit requirement. Except as provided in paragraphs (b), (c),
and (d) of this section, you must have a permit to import or export
migratory birds, their parts, nests, or eggs. You must meet the
applicable permit requirements of the following parts of this subchapter
B, even if the activity is exempt from a migratory bird import or export
permit:
(1) 13 (General Permit Procedures);
(2) 14 (Importation, Exportation, and Transportation of Wildlife);
(3) 15 (Wild Bird Conservation Act);
(4) 17 (Taking, Possession, Transportation, Sale, Purchase, Barter,
Exportation, and Importation of Wildlife and Plants);
(5) 20 (Migratory Bird Hunting);
(6) 21 (Migratory Bird Permits);
(7) 22 (Eagle Permits); and
(8) 23 (Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES)).
(b) Exception to the import permit requirements. If you comply with
the requirements of parts 14, 20, and 23 of this subchapter B, you do
not need a migratory bird permit to import or possess migratory birds in
the families Anatidae, Columbidae, Gruidae, Rallidae, and Scolopacidae
for personal use that were lawfully hunted by you in a foreign country.
The birds may be carcasses, skins, or mounts. You must provide evidence
that you lawfully took the bird or birds in, and exported them from, the
country of origin. This evidence must include a hunting license and any
export documentation required by the country of origin. You must keep
these documents with the imported bird or birds permanently.
(c) General exceptions to the export permit requirements. You do not
need a migratory bird export permit to:
(1) Export live, captive-bred migratory game birds (see Sec.20.11
of this subpart) to Canada or Mexico if they are marked by one of the
following methods:
(i) Removal of the hind toe from the right foot;
(ii) Pinioning of a wing by removal of all or some of the metacarpal
bones of one wing, which renders the bird permanently incapable of
flight;
(iii) Banding of one metatarsus with a seamless metal band; or
(iv) A readily discernible tattoo of numbers and/or letters on the
web of one foot.
(2) Export live, lawfully-acquired, captive-bred raptors provided
you hold a valid raptor propagation permit
[[Page 79]]
issued under Sec.21.30 and you obtain a CITES permit or certificate
issued under part 23 to do so. You must have full documentation of the
lawful origin of each raptor, and each must be identifiable with a
seamless band issued by the Service, including any raptor with an
implanted microchip for identification.
(d) Falconry birds covered under a CITES ``pet passport.'' You do
not need a migratory bird import or export permit to temporarily export
and subsequently import a raptor or raptors you lawfully possess for
falconry to and from another country for use in falconry when the
following conditions are met:
(1) You must meet applicable requirements in part 14 (Importation,
Exportation, and Transportation of Wildlife) of this subchapter B.
(2) You may need one or more additional permits to take a bird from
the United States or to return home with it (see 50 CFR part 15 (Wild
Bird Conservation Act), part 17 (Endangered and Threatened Wildlife and
Plants), and part 23 (Convention on International Trade in Endangered
Species of Wild Fauna and Flora)).
(3) Each raptor must be covered by a CITES certificate of ownership
issued under part 23 of this chapter. You must have full documentation
of the lawful origin of each raptor (a copy of a propagation report with
band number or a 3-186A report), and each must be identifiable with a
seamless band or a permanent, nonreusable, numbered Fish and Wildlife
Service leg band issued by the Service, including any raptor with an
implanted microchip for identification. We may exempt a raptor from
banding because of health concerns, but you must provide proof of the
exemption from your falconry permitting authority.
(4) You must bring any raptor that you export out of the country for
falconry under a CITES ``pet passport'' back to the United States when
you return.
(5) If the raptor dies or is lost, you are not required to bring it
back, but you must report the loss immediately upon your return to the
United States in the manner required by the falconry regulations of your
State, and according to any conditions on your CITES certificate.
(e) Inspection of imported or exported migratory birds. All
migratory birds imported into, or exported from, the United States, and
any associated documentation, may be inspected by the Service. You must
comply with the import and export regulations in Part 14 of this
chapter.
(f) Applying for a migratory bird import or export permit. You must
apply to the appropriate Regional Director--Attention Migratory Bird
Permit Office. You can find the address for your Regional Director in
Sec.2.2 of subchapter A of this chapter. Your application package must
include a completed application (form 3-200-6, or 3-200-7 if the import
or export is associated with an application for a scientific collecting
permit), and a check or money order made payable to the U.S. Fish and
Wildlife Service in the amount of the application fee for permits issued
under this section, as listed in Sec.13.11 of this chapter.
(g) Criteria we will consider before issuing a permit. After we
receive a completed import or export application, the Regional Director
will decide whether to issue you a permit based on the general criteria
of Sec.13.21 of this chapter, and whether you meet the following
requirements:
(1) You are at least 18 years of age;
(2) The bird was lawfully acquired; and
(3) The purpose of the import or export is consistent with the
conservation of the species; and
(4) For an import permit, whether you are authorized to lawfully
possess the migratory bird after it is imported.
(h) Are there standard conditions for the permit? Yes, standard
conditions for your permit are set forth in part 13 of this subchapter
B. You must also comply with the regulations in part 14 (Importation,
Exportation, and Transportation of Wildlife). We may place additional
requirements or restrictions on your permit as appropriate.
(i) Term of a migratory bird import and export permit. Your
migratory bird import or export permit will be valid for not more than 5
years. It will expire on
[[Page 80]]
the date designated on its face unless it is amended or revoked.
[73 FR 47097, Aug. 13, 2008, as amended at 73 FR 55451, Sept. 25, 2008]
Sec.21.22 Banding or marking permits.
(a) Permit requirement. A banding or marking permit is required
before any person may capture migratory birds for banding or marking
purposes or use official bands issued by the Service for banding or
marking any migratory bird.
(b) Application procedures. Applications for banding or marking
permits shall be submitted by letter of application addressed to the
Bird Banding Laboratory, Office of Migratory Bird Management, U.S. Fish
and Wildlife Service, Laurel, Maryland 20708. Each such application
shall contain the general information and certification set forth by
Sec.13.12(a) of this subchapter plus the following additional
information:
(1) Species and numbers proposed to be banded or marked;
(2) Purpose of banding or marking;
(3) State or States in which authorization is requested; and
(4) Name and address of the public, scientific, or educational
institution to which any specimens will be donated that are salvaged
pursuant to paragraphs (c) (3) and (4) of this section.
(c) Additional permit conditions. In addition to the general
conditions set forth in part 13 of this subchapter B, banding or marking
permits shall be subject to the following conditions:
(1) The banding of migratory birds shall only be by official
numbered leg bands issued by the Service. The use of any other band,
clip, dye, or other method of marking is prohibited unless specifically
authorized in the permit.
(2) All traps or nets used to capture migratory birds for banding or
marking purposes shall have attached thereto a tag or label clearly
showing the name and address of the permittee and his permit number, or
the area in which such traps or nets are located must be posted with
notice of banding operations posters (Form 3-1155, available upon
request from the Bird Banding Laboratory, Office of Migratory Bird
Management, U.S. Fish and Wildlife Service, Laurel, Md. 20708) which
shall bear the name and address of the permittee and the number of his
permit.
(3) The holder of a banding or marking permit may salvage, for the
purpose of donating to a public scientific or educational institution,
birds killed or found dead as a result of the permittee's normal banding
operations, and casualties from other causes. All dead birds salvaged
under authority of a migratory bird banding or marking permit must be
donated and transferred to a public scientific or educational
institution at least every 6 months or within 60 days of the time such
permit expires or is revoked, unless the permittee has been issued a
special permit authorizing possession for a longer period of time.
(4) Permittees must keep accurate records of their operations and
file reports as set forth in the North American Bird Banding Manual, or
supplements thereto, in accordance with instructions contained therein.
(d) Term of permit. A banding or marking permit issued or renewed
under this part expires on the date designated on the face of the permit
unless amended or revoked, but the term of the permit shall not exceed
three (3) years from the date of issuance or renewal.
[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38151, Sept. 14, 1989]
Sec.21.23 Scientific collecting permits.
(a) Permit requirement. A scientific collecting permit is required
before any person may take, transport, or possess migratory birds, their
parts, nests, or eggs for scientific research or educational purposes.
(b) Application procedures. Submit applications for scientific
permits to the appropriate Regional Director (Attention: Migratory bird
permit office). You can find addresses for the Regional Directors in 50
CFR 2.2. Each application must contain the general information and
certification required in Sec.13.12(a) of this subchapter, and the
following additional information:
(1) Species and numbers of migratory birds or their parts, nests, or
eggs to be taken or acquired when it is possible to determine same in
advance;
[[Page 81]]
(2) Location or locations where such scientific collecting is
proposed;
(3) Statement of the purpose and justification for granting such a
permit, including an outline of any research project involved;
(4) Name and address of the public, scientific, or educational
institution to which all specimens ultimately will be donated; and
(5) If a State permit is required by State law, a statement as to
whether or not the applicant possesses such State permit, giving its
number and expiration date.
(c) Additional permit conditions. In addition to the general
conditions set forth in part 13 of this subchapter B, scientific
collecting permits shall be subject to the following conditions:
(1) All specimens taken and possessed under authority of a
scientific collecting permit must be donated and transferred to the
public scientific, or educational institution designated in the permit
application within 60 days following the date such permit expires or is
revoked, unless the permittee has been issued a special purpose permit
(See Sec.21.27) authorizing possession for a longer period of time.
(2) Unless otherwise provided on the permit, all migratory game
birds taken pursuant to a scientific collecting permit during the open
hunting season for such birds must be in conformance with part 20 of
this subchapter;
(3) Unless specifically stated on the permit, a scientific
collecting permit does not authorize the taking of live migratory birds
from the wild.
(4) In addition to any reporting requirement set forth in the
permit, a report of the scientific collecting activities conducted under
authority of such permit shall be submitted to the issuing officer on or
before January 10 of each calendar year following the year of issue
unless a different date is stated in the permit.
(d) Term of permit. A scientific collecting permit issued or renewed
under this part expires on the date designated on the face of the permit
unless amended or revoked, but the term of the permit shall not exceed
three (3) years from the date of issuance or renewal.
[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38151, Sept. 14, 1989; 63
FR 52637, Oct. 1, 1998]
Sec.21.24 Taxidermist permits.
(a) Permit requirement. A taxidermist permit is required before any
person may perform taxidermy services on migratory birds or their parts,
nests, or eggs for any person other than himself.
(b) Application procedures. Submit application for taxidermist
permits to the appropriate Regional Director (Attention: Migratory bird
permit office). You can find addresses for the Regional Directors in 50
CFR 2.2. Each application must contain the general information and
certification required in Sec.13.12(a) of this subchapter, and the
following additional information:
(1) The address of premises where taxidermist services will be
provided;
(2) A statement of the applicant's qualifications and experience as
a taxidermist; and
(3) If a State permit is required by State law, a statement as to
whether or not the applicant possesses such State permit, giving its
number and expiration date.
(c) Permit authorizations. A permit authorizes a taxidermist to:
(1) Receive, transport, hold in custody or possession, mount or
otherwise prepare, migratory birds, and their parts, nests, or eggs, and
return them to another.
(2) Sell properly marked, captive reared migratory waterfowl which
he has lawfully acquired and mounted. Such mounted birds may be placed
on consignment for sale and may be possessed by such consignee for the
purpose of sale.
(d) Additional permit conditions. In addition to the general
conditions set forth in part 13 of this subchapter B, taxidermist
permits shall be subject to the following conditions:
(1) Permittees must keep accurate records of operations, on a
calendar year basis, showing the names and addresses of persons from and
to whom migratory birds or their parts, nests, or eggs were received or
delivered, the number and species of such, and the dates of receipt and
delivery. In addition to the other records required by this paragraph,
the permittee must maintain in his files, the original of the completed
Form 3-186, Notice of Waterfowl Sale or Transfer, confirming
[[Page 82]]
his acquisition of captive reared, properly marked migratory waterfowl
from the holder of a current waterfowl sale and disposal permit.
(2) Notwithstanding the provisions of paragraph (c) of this section,
the receipt, possession, and storage by a taxidermist of any migratory
game birds taken by another by hunting is not authorized unless they are
tagged as required by Sec.20.36 of this subchapter. The required tags
may be removed during the taxidermy operations but must be retained by
the taxidermist with the other records required to be kept and must be
reattached to the mounted specimen after mounting. The tag must then
remain attached until the mounted specimen is delivered to the owner.
(e) Term of permit. A taxidermist permit issued or renewed under
this part expires on the date designated on the face of the permit
unless amended or revoked, but the term of the permit will not exceed
five (5) years from the date of issuance or renewal.
[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38151, Sept. 14, 1989; 63
FR 52637, Oct. 1, 1998; 70 FR 18320, Apr. 11, 2005]
Sec.21.25 Waterfowl sale and disposal permits.
(a) Permit requirement. You must have a waterfowl sale and disposal
permit before you may lawfully sell, trade, donate, or otherwise dispose
of, most species of captive-reared and properly marked migratory
waterfowl or their eggs. You do not need a permit to sell or dispose of
properly marked captive-reared mallard ducks (Anas platyrhynchos) or
their eggs.
(b) Permit conditions. In addition to the general conditions set
forth in part 13 of this subchapter B, waterfowl sale and disposal
permits are subject to the following conditions:
(1) You may not take migratory waterfowl or their eggs from the
wild, unless take is provided for elsewhere in this subchapter.
(2) You may not acquire migratory waterfowl or their eggs from any
person who does not have a valid waterfowl propagation permit.
(3) Before they are 6 weeks of age, all live captive migratory
waterfowl possessed under authority of a valid waterfowl sale and
disposal permit must be physically marked as defined in Sec.21.13(b).
(4) All offspring of birds hatched, reared, and retained in
captivity also must be marked before they are 6 weeks of age in
accordance with Sec.21.13(b), unless they are held in captivity at a
public zoological park, or a public scientific or educational
institution.
(5) Properly marked captive-bred birds may be killed, in any number,
at any time or place, by any means except shooting. They may be killed
by shooting only in accordance with all the applicable hunting
regulations governing the taking of like species from the wild.
(6) At all times during possession, transportation, and storage,
until the raw carcasses of such birds are finally processed immediately
prior to cooking, smoking, or canning, the marked foot or wing must
remain attached to each carcass. However, if you have a State license,
permit, or authorization that allows you to sell game, you may remove
the marked foot or wing from the raw carcasses if the number of your
State license, permit, or authorization has been legibly stamped in ink
on the back of each carcass and on the wrapping or container in which
each carcass is maintained, or if each carcass is identified by a State
band on a leg or wing pursuant to requirements of your State license,
permit, or authorization.
(7) You may dispose of properly marked live or dead birds or their
eggs (except muscovy ducks and their eggs) in any number at any time or
place, or transfer them to any person, if the birds are physically
marked prior to sale or disposal, regardless of whether or not they have
attained 6 weeks of age.
(8) You may propagate muscovy ducks (Cairina moschata) only for sale
for food.
(i) You may not release muscovy ducks to the wild or transfer them
for release to the wild.
(ii) You may not sell or transfer muscovy ducks to be killed by
shooting.
(9) If you transfer captive-bred birds or their eggs to another
person, you must complete FWS Form 3-186, Notice of Waterfowl Sale or
Transfer, and provide all information required on the
[[Page 83]]
form, plus the method or methods by which individual birds are marked as
required by Sec.21.13(b).
(i) Give the original of the completed form to the person acquiring
the birds or eggs.
(ii) Retain one copy in your files.
(iii) Attach one copy to the shipping container for the birds or
eggs, or include it with shipping documents that accompany the shipment.
(iv) By the end of the month in which you complete the transfer,
mail two copies to the Fish and Wildlife Service Regional Office that
issued your permit.
(c) Reporting requirements. You must submit an annual report by
January 10th of each year to the Fish and Wildlife Service Regional
Office that issued your permit. You must report the number of waterfowl
of each species you possess on that date, and the method or methods by
which each is marked.
(d) Applying for a waterfowl propagation permit. Submit your
application for a waterfowl sale and disposal permit to the appropriate
Regional Director (Attention: Migratory Bird Permit Office). You can
find addresses for the Regional Directors in 50 CFR 2.2. Your
application must contain the general information and certification
required in Sec.13.12(a) of subchapter A of this chapter, and the
following additional information:
(1) A description of the area where you will keep waterfowl in your
possession;
(2) The species and numbers of waterfowl you possess and a statement
showing from whom the birds were obtained;
(3) A statement indicating the method by which birds you hold will
be marked as required by the provisions of this part 21; and
(4) The number and expiration of your State permit if you are
required to have one.
(e) Term of permit. A waterfowl sale and disposal permit issued or
renewed under this part expires on the date designated on the face of
the permit unless amended or revoked, but the term of the permit will
not exceed five (5) years from the date of issuance or renewal.
[75 FR 9320, Mar. 1, 2010]
Sec.21.26 Special Canada goose permit.
(a) What is the special Canada goose permit and what is its purpose?
The special Canada goose permit is a permit issued by us to a State
wildlife agency authorizing certain resident Canada goose management and
control activities that are normally prohibited. We will only issue such
a permit when it will contribute to human health and safety, protect
personal property, or allow resolution or prevention of injury to people
or property. The management and control activities conducted under the
permit are intended to relieve or prevent injurious situations only. No
person should construe the permit as opening, reopening, or extending
any hunting season contrary to any regulations established under Section
3 of the Migratory Bird Treaty Act.
(b) Who may receive a permit? Only State wildlife agencies (State)
are eligible to receive a permit to undertake the various goose
management and control activities. Additionally, only employees or
designated agents of a permitted State wildlife agency may undertake
activities for injurious resident Canada geese in accordance with the
conditions specified in the permit, conditions contained in 50 CFR part
13, and conditions specified in paragraph (d) of this section.
(c) How does a State apply for a permit? Any State wildlife agency
wishing to obtain a permit must submit an application to the appropriate
Regional Director (see Sec.13.11(b) of this subchapter) containing the
general information and certification required by Sec.13.12(a) of this
subchapter plus the following information:
(1) A detailed statement showing that the goose management and
control activities will either provide for human health and safety,
protect personal property, or allow resolution of other injury to people
or property;
(2) An estimate of the size of the resident Canada goose breeding
population in the State;
(3) The requested annual take of resident Canada geese, including
eggs and nests;
[[Page 84]]
(4) A statement indicating that the State will inform and brief all
employees and designated agents of the requirements of these regulations
and permit conditions.
(d) What are the conditions of the permit? The special Canada goose
permits are subject to the general conditions in 50 CFR part 13, the
conditions elsewhere in this section, and, unless otherwise specifically
authorized on the permit, the conditions outlined below:
(1) What are the limitations on management and control activities?
(i) Take of resident Canada geese as a management tool under this
section may not exceed the number authorized by the permit. States
should utilize non-lethal goose management tools to the extent they deem
appropriate in an effort to minimize lethal take.
(ii) Methods of take for the control of injurious resident Canada
geese are at the State's discretion. Methods include, but are not
limited to, firearms, alpha-chloralose, traps, egg and nest manipulation
and other damage control techniques consistent with accepted wildlife
damage-management programs.
(2) When may a State conduct management and control activities?
States and their employees and agents may conduct egg and nest
manipulation activities at any time of year. Other management and
control activities, including the take of resident Canada geese, under
this section may only be conducted between March 11 and August 31.
(3) How must the States dispose or utilize geese taken under this
permit? States and their employees and agents may possess, transport,
and otherwise dispose of Canada geese taken under this section. States
must utilize such birds by donation to public museums or public
institutions for scientific or educational purposes, by processing them
for human consumption and distributing them free of charge to charitable
organizations, or by burying or incinerating them. States, their
employees, and designated agents may not sell, offer for sale, barter,
or ship for the purpose of sale or barter any Canada geese taken under
this section, nor their plumage or eggs.
(4) How does the permit relate to existing State law? No person
conducting management and control activities under this section should
construe the permit to authorize the killing of injurious resident
Canada geese contrary to any State law or regulation, nor on any Federal
land without specific authorization by the responsible management
agency. No person may exercise the privileges granted under this section
unless they possess any permits required for such activities by any
State or Federal land manager.
(5) When conducting management and control activities, are there any
special inspection requirements? Any State employee or designated agent
authorized to carry out management and control activities must have a
copy of the permit and designation in their possession when carrying out
any activities. The State must also require the property owner or
occupant on whose premises the State is conducting activities to allow,
at all reasonable times, including during actual operations, free and
unrestricted access to any Service special agent or refuge officer,
State wildlife or deputy wildlife agent, warden, protector, or other
wildlife law enforcement officer (wildlife officer) on the premises
where they are, or were, conducting activities. Furthermore, any State
employee or designated agent conducting such activities must promptly
furnish whatever information is required concerning such activities to
any such wildlife officer.
(6) What are the reporting requirements of the permit? Any State
employee or designated agent exercising the privileges granted by this
section must keep records of all activities carried out under the
authority of this permit, including the number of Canada geese killed
and their disposition. The State must submit an annual report detailing
activities, including the time, numbers and location of birds, eggs, and
nests taken and non-lethal techniques utilized, before December 31 of
each year. The State should submit the annual report to the appropriate
Assistant Regional Director--Refuges and Wildlife (see Sec.10.22 of
this subchapter).
(7) What are the limitations of the special permit? The following
limitations apply:
[[Page 85]]
(i) Nothing in this section applies to any Federal land within a
State's boundaries without written permission of the Federal Agency with
jurisdiction.
(ii) States may not undertake any actions under any permit issued
under this section if the activities adversely affect other migratory
birds or species designated as endangered or threatened under the
authority of the Endangered Species Act.
(iii) We will only issue permits to State wildlife agencies in the
conterminous United States.
(iv) States may designate agents who must operate under the
conditions of the permit.
(v) How long is the special permit valid? A special Canada goose
permit issued or renewed under this section expires on the date
designated on the face of the permit unless it is amended or revoked or
such time that we determine that the State's population of resident
Canada geese no longer poses a threat to human health or safety,
personal property, or injury to other interests. In all cases, the term
of the permit may not exceed five (5) years from the date of issuance or
renewal.
(vi) Can we revoke the special permit? We reserve the right to
suspend or revoke any permit, as specified in Sec. Sec.13.27 and 13.28
of this subchapter.
(e) What are the OMB information collection requirements of the
permit program? OMB has approved the information collection requirements
of the permit and assigned clearance number 1018-0099. Federal agencies
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number. We will use the information collection requirements to
administer this program and in the issuance and monitoring of these
special permits. We will require the information from State wildlife
agencies responsible for migratory bird management in order to obtain a
special Canada goose permit, and to determine if the applicant meets all
the permit issuance criteria, and to protect migratory birds. We
estimate the public reporting burden for this collection of information
to average 8 hours per response for 45 respondents (States), including
the time for reviewing instructions, gathering and maintaining data
needed, and completing and reviewing the collection of information.
Thus, we estimate the total annual reporting and record-keeping for this
collection to be 360 hours. States may send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Service's
Information Collection Clearance Officer at the address provided at 50
CFR 2.1(b).
[64 FR 32774, June 17, 1999, as amended at 79 FR 43965, July 29, 2014;
84 FR 28773, June 20, 2019]
Sec.21.27 Special purpose permits.
Permits may be issued for special purpose activities related to
migratory birds, their parts, nests, or eggs, which are otherwise
outside the scope of the standard form permits of this part. A special
purpose permit for migratory bird related activities not otherwise
provided for in this part may be issued to an applicant who submits a
written application containing the general information and certification
required by part 13 and makes a sufficient showing of benefit to the
migratory bird resource, important research reasons, reasons of human
concern for individual birds, or other compelling justification.
(a) Permit requirement. A special purpose permit is required before
any person may lawfully take, salvage, otherwise acquire, transport, or
possess migratory birds, their parts, nests, or eggs for any purpose not
covered by the standard form permits of this part. In addition, a
special purpose permit is required before any person may sell, purchase,
or barter captive-bred, migratory game birds, other than waterfowl, that
are marked in compliance with Sec.21.13(b) of this part.
(b) Application procedures. Submit application for special purpose
permits to the appropriate Regional Director (Attention: Migratory bird
permit office). You can find addresses for the Regional Directors in 50
CFR 2.2. Each application must contain the general information and
certification required in Sec.13.12(a) of this subchapter, and the
following additional information:
[[Page 86]]
(1) A detailed statement describing the project or activity which
requires issuance of a permit, purpose of such project or activity, and
a delineation of the area in which it will be conducted. (Copies of
supporting documents, research proposals, and any necessary State
permits should accompany the application);
(2) Numbers and species of migratory birds involved where same can
reasonably be determined in advance; and
(3) Statement of disposition which will be made of migratory birds
involved in the permit activity.
(c) Additional permit conditions. Inaddition to the general
conditions set forth in part 13 of this subchapter B, special purpose
permits shall be subject to the following conditions:
(1) Permittees shall maintain adequate records describing the
conduct of the permitted activity, the numbers and species of migratory
birds acquired and disposed of under the permit, and inventorying and
identifying all migratory birds held on December 31 of each calendar
year. Records shall be maintained at the address listed on the permit;
shall be in, or reproducible in English; and shall be available for
inspection by Service personnel during regular business hours. A
permittee may be required by the conditions of the permit to file with
the issuing office an annual report of operation. Annual reports, if
required, shall be filed no later than January 31 of the calendar year
following the year for which the report is required. Reports, if
required, shall describe permitted activities, numbers and species of
migratory birds acquired and disposed of, and shall inventory and
describe all migratory birds possessed under the special purpose permit
on December 31 of the reporting year.
(2) Permittees shall make such other reports as may be requested by
the issuing officer.
(3) All live, captive-bred, migratory game birds possessed under
authority of a valid special purpose permit shall be physically marked
as defined in Sec.21.13(b) of this part.
(4) No captive-bred migratory game bird may be sold or bartered
unless marked in accordance with Sec.21.13(b) of this part.
(5) No permittee may take, purchase, receive or otherwise acquire,
sell, barter, transfer, or otherwise dispose of any captive-bred
migratory game bird unless such permittee submits a Service form 3-186A
(Migratory Bird Acquisition/Disposition Report), completed in accordance
with the instructions on the form, to the issuing office within five (5)
days of such transaction.
(6) No permittee, who is authorized to sell or barter migratory game
birds pursuant to a permit issued under this section, may sell or barter
such birds to any person unless that person is authorized to purchase
and possess such migratory game birds under a permit issued pursuant to
this part and part 13, or as permitted by regulations in this part.
(d) Term of permit. A special purpose permit issued or renewed under
this part expires on the date designated on the face of the permit
unless amended or revoked, but the term of the permit shall not exceed
three (3) years from the date of issuance or renewal.
[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38152, Sept. 14, 1989; 63
FR 52637, Oct. 1, 1998]
Sec.21.28 [Reserved]
Sec.21.29 Falconry standards and falconry permitting.
(a) Background--(1) The legal basis for regulating falconry. The
Migratory Bird Treaty Act prohibits any person from taking, possessing,
purchasing, bartering, selling, or offering to purchase, barter, or
sell, among other things, raptors (birds of prey) listed in Sec.10.13
of this subchapter unless the activities are allowed by Federal permit
issued under this part and part 13 of this chapter, or as permitted by
regulations in this part.
(i) This section covers all Falconiformes (vultures, kites, eagles,
hawks, caracaras, and falcons) and all Strigiformes (owls) listed in
Sec.10.13 of this subchapter (``native'' raptors), and applies to any
person who possesses one or more wild-caught, captive-bred, or hybrid
raptors protected under the MBTA to use in falconry.
(ii) The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d,
54 Stat. 250) provides for the taking of golden eagles from the wild to
use in falconry.
[[Page 87]]
It specifies that the only golden eagles that may be taken from the wild
for falconry are those that would be taken because of depredations on
livestock or wildlife (16 U.S.C. 668a).
(2) ``Possession'' and short-term handling of a falconry raptor. We
do not consider short-term handling, such as letting any other person
hold or practice flying a raptor you possess under your permit, to be
possession for the purposes of this section if you are present and the
person is under your supervision.
(3) Regulatory year for governing falconry. For determining
possession and take of raptors for falconry, a year is any 12-month
period for take defined by the State, tribe, or territory.
(b) Federal approval of State, tribal, and territorial falconry
programs--(1) General. (i) A State (including the District of Columbia),
tribe, or territory under the jurisdiction of the United States that
wishes to allow falconry must establish laws and regulations (hereafter
referred to as laws) that meet the standards established in this
section. To allow the practice of falconry on tribal lands by tribal
members or residents, a tribe may either certify that it has adopted
Service-approved State laws if those laws are fully enforceable on
tribal lands, or issue its own laws and request our approval.
(ii) State, tribal, or territorial laws may be more restrictive than
these Federal standards but may not be less restrictive. For instance, a
State, tribe, or territory may choose not to allow possession of some
species of raptors otherwise allowed in this section. State, tribal, and
territorial laws must be consistent with the terms contained in any
convention between the United States and any foreign country for the
protection of raptors and the Migratory Bird Treaty Act.
(2) Reporting. (i) The State, tribe, or territory must work with us
to ensure that the electronic 3-186A reporting system (http://
permits.fws.gov/186A) for reporting take, transfers, and loss of
falconry birds is fully operational for residents of that jurisdiction.
(ii) If you are required to submit a report or other information
under this section, you must either enter the required information in
the electronic database at http://permits.fws.gov/186A, or at http://
www.wildlife.ca.gov/FalconryReporting if you are a resident of
California, or submit a paper form 3-186A to your State, tribal, or
territorial agency that governs falconry.
(3) Federal approval and terms. If we concur that the regulations
and the examination meet the requirements of this section, we will
publish a rule in the Federal Register adding the State, tribe, or
territory to the list of those approved for allowing the practice of
falconry. We will terminate Federal falconry permitting in any State
certified under these regulations on January 1st of the calendar year
following publication of the rule.
(4) Review of a State, tribal, or territorial falconry program. We
may review the administration of an approved State's, tribe's, or
territory's falconry program if complaints from the public or law
enforcement investigations indicate the need for a review or for
revisions to the State's, tribe's, or territory's laws, or falconry
examination. The review may involve, but is not limited to:
(i) Inspecting falconers' facilities to ensure that the facilities
standards in this section are met;
(ii) Processing time of applications;
(iii) Reviewing approved applications for completeness;
(iv) Determining that permits issued are appropriate for the
experience of the applicants;
(v) Determining the adequacy of the State's, tribe's, or territory's
recordkeeping for the needs of State, tribal, or territorial and Federal
law enforcement;
(vi) Reviewing laws to determine if they meet the requirements of
this section; and
(vii) Reviewing a revised falconry examination to determine if it
meets the requirements of this section.
(5) Suspension of a State's, tribe's, or territory's certification.
(i) We may propose to suspend, and may suspend, the approval of a State,
tribal, or territorial falconry program in accordance with the
procedures in paragraph (b)(5)(ii) of this section if we determine that
the State, tribe, or territory has
[[Page 88]]
deficiencies in one or more items in paragraph (b)(4) of this section.
(ii) When we propose to suspend approval of a State, tribal, or
territorial falconry program, we will first provide written notice to
the State, tribe, or territory. Any such notice will include the basis
for our determination that suspension is warranted. We will identify the
actions that would, if implemented by the State, tribe, or territory,
allow us to cancel the proposed suspension of approval.
(iii) The State, tribe, or territory will have 2 years from the date
of our notification to correct the deficiencies. The State, tribe, or
territory must respond in writing within that time to the proposed
suspension, specifying the reasons why the certification should not be
suspended. We will give due consideration to any objections and evidence
raised by the State, tribe, or territory.
(iv) If we continue to believe that suspension is warranted, we will
provide written notice of suspension, including the rationale for
suspension, and respond to any objections to the suspension.
(A) The suspension of approval of the State's, tribe's, or
territory's falconry program will be effective 180 days from the date of
the Service's final notification of suspension.
(B) The State, tribe, or territory must then inform all falconry
applicants and permittees of the impending cancellation of permitting.
(v) We will honor all falconry permits in that jurisdiction for 2
years from the date of our final notification of suspension of
certification. At the end of the 2 years, you must transfer all raptors
(including captive-bred raptors) held under permits from the State,
tribal, or territorial falconry program to other falconry permittees in
other States or territories, or to Federal raptor propagation or
education permittees, institutions exempt from the Federal permit
requirements, or permanently released to the wild (if it is allowed by
the State, tribe, or territory and by this section), or euthanized.
However, you may not permanently release hybrid raptors to the wild.
(6) Appeal of a decision to suspend State, tribal, or territorial
certification. The State, tribe, or territory may appeal a decision to
suspend certification to the Director within 180 days of the date of the
Director's decision. The Director will then respond to the State, tribe,
or territory within 180 days of receipt of the appeal. The State, tribe,
or territory certification will remain effective until the Director
makes a final decision on the appeal.
(7) Recertification of compliance with this section if a State's,
tribe's, or territory's falconry permitting authority has been
suspended. If a State, tribe, or territory has had its falconry
permitting authority suspended but has corrected its problems, it must
submit a request for approval of its permitting activities. We will then
either recertify the program, or report in writing why we do not believe
that earlier permitting problems have been rectified.
(8) Authority to suspend or revoke a falconry permit issued by a
State, tribe, or territory. Suspension or revocation of a falconry
permit is the responsibility of the State, tribe, or territory. However,
compliance with all provisions of these regulations remains under the
purview of the Fish and Wildlife Service.
(9) Standards in effect in your place of residence. If you live in
any State except Hawaii, you may practice falconry as permitted in these
regulations if you have a falconry permit from your State, tribe, or
territory.
(c) Practicing falconry--(1) Permits and inspections to practice
falconry. You must have a valid falconry permit from the State, tribe,
or territory in which you reside (or the tribe on whose land you wish to
practice falconry if you reside on tribal land or are a tribal member),
to take, possess, or transport raptors for falconry, or to hunt with
them. Depending on the game you hunt as a falconer and where you hunt,
you also may need a Federal Migratory Bird Hunting and Conservation
Stamp (a ``Duck Stamp''), and State, tribal, or territorial hunting
permits or stamps to hunt with a raptor.
(i) Some State, tribal, territorial, or local governments may
require you to have additional permits or licenses to practice falconry
or to take a raptor from the wild.
[[Page 89]]
(ii) You must comply with all regulations governing migratory bird
permitting.
(iii) If you reside for more than 120 consecutive days in a State or
territory or on tribal lands other than the location of your primary
residence, your falconry facilities in the second location must meet the
standards in paragraph (d) of this section and of the corresponding
State, tribal, or territorial lands, and your facilities must be listed
on your falconry permit.
(2) Classes of permit to practice falconry. We recognize Apprentice,
General, and Master Falconer levels. Each State, tribe, or territory may
have any number of permit levels, but the standards for them must be at
least as restrictive as these Federal standards. Your State, tribe, or
territory may have more restrictive laws or regulations governing
falconry.
(i) Requirements and possession options for an Apprentice Falconer.
(A) You must be at least 12 years of age.
(B) If you are under 18 years of age, a parent or legal guardian
must sign your application and is legally responsible for your
activities.
(C) You must have a letter from a Master Falconer or a General
Falconer with a valid State, tribal, or territorial falconry permit who
is at least 18 years old and has at least 2 years experience at the
General Falconer level, stating that he or she will assist you, as
necessary, in:
(1) Learning about the husbandry and training of raptors held for
falconry;
(2) Learning and about relevant wildlife laws and regulations, and
(3) Deciding what species of raptor is appropriate for you to
possess while an Apprentice.
(D) Regardless of the number of State, tribal, or territorial
falconry permits you have, you may possess no more than one raptor for
use in falconry.
(E) You may take raptors less than 1 year old, except nestlings,
from the wild during any period or periods specified by the State,
tribe, or territory. You may take any raptor species from the wild
except a federally listed threatened or endangered species or the
following species: Bald eagle (Haliaeetus leucocephalus), white-tailed
eagle (Haliaeetus albicilla), Steller's sea-eagle (Haliaeetus
pelagicus), golden eagle (Aquila chrysaetos), American swallow-tailed
kite (Elanoides forficatus), Swainson's hawk (Buteo swainsoni),
peregrine falcon (Falco peregrinus), flammulated owl (Otus flammeolus),
elf owl (Micrathene whitneyi), and short-eared owl (Asio flammeus).
(F) You may possess a raptor of any Falconiform or Strigiform
species, including wild, captive-bred, or hybrid individuals, except a
federally listed threatened or endangered species, a bald eagle
(Haliaeetus leucocephalus), a white-tailed eagle (Haliaeetus albicilla),
a Steller's sea-eagle (Haliaeetus pelagicus), or a golden eagle (Aquila
chrysaetos).
(G) You do not need to capture a wild raptor yourself; it can be
transferred to you by another falconry permittee.
(H) You may not possess a raptor taken from the wild as a nestling.
(I) You may not possess a bird that is imprinted on humans.
(J) Your raptor facilities must pass inspection by your State,
tribe, or territory before you may be granted a permit.
(ii) Requirements and possession options for a General Falconer.
(A) You must be at least 16 years of age.
(B) If you are 16 or 17 years of age, a parent or legal guardian
must sign your application and must be legally responsible for your
activities.
(C) You must submit a document from a General Falconer or Master
Falconer (preferably your sponsor) to your State, tribal, or territorial
wildlife agency stating that you have practiced falconry with raptor(s)
at the Apprentice Falconer level or equivalent for at least 2 years,
including maintaining, training, flying, and hunting the raptor(s) for
least 4 months in each year. That practice may include capture and
release of falconry raptors.
(D) You may not substitute any falconry school program or education
to shorten the period of 2 years at the Apprentice level.
(E) You may take and possess any species of Falconiform or
Strigiform except a golden eagle, a bald eagle, a
[[Page 90]]
white-tailed eagle, or a Steller's sea-eagle. You may use captive-bred
individuals and hybrids of the species you are allowed to possess.
(F) Regardless of the number of State, tribal, or territorial
falconry permits you have, you may possess no more than 3 raptors.
(iii) Requirements and possession options for a Master Falconer.
(A) You must have practiced falconry with your own raptor(s) at the
General Falconer level for at least 5 years.
(B) You may take and possess any species of Falconiform or
Strigiform except a bald eagle. However, you may take and possess a
golden eagle, a white-tailed eagle, or a Steller's sea eagle only if you
meet the qualifications set forth under paragraph (c)(2)(iv).
(C) You may possess any captive-bred individuals or hybrids of
species your State, tribe, or territory allows you to possess for use in
falconry.
(D) Regardless of the number of State, tribal, or territorial
falconry permits you have, you may possess no more than 5 wild raptors,
including golden eagles.
(E) You may possess any number of captive-bred raptors. However, you
must train them in the pursuit of wild game and use them in hunting.
(iv) If you meet the requirements in paragraph (c) of this section
for falconry you may possess up to 3 eagles of the following species:
golden eagle, white-tailed eagle, or Steller's sea eagle.
(A) Your State, tribal, or territorial agency that regulates
falconry must document the following before approving your request to
possess an eagle to use in falconry:
(1) Your experience in handling large raptors, including information
about the species you have handled and the type and duration of the
activity in which you gained the experience.
(2) At least two letters of reference from people with experience
handling and/or flying large raptors such as eagles, ferruginous hawks,
goshawks (Accipiter gentilis), or great horned owls (Bubo virginianus).
Each must contain a concise history of the author's experience with
large raptors, which can include, but is not limited to, handling of
raptors held by zoos, rehabilitating large raptors, or scientific
studies involving large raptors. Each letter must also assess your
ability to care for eagles and fly them in falconry.
(B) A golden eagle, white-tailed eagle, or Steller's sea-eagle you
hold will count as one of the raptors you are allowed to possess for use
in falconry.
(3) Taking a test to qualify for a falconry permit. Before you are
issued an Apprentice permit you must correctly answer at least 80
percent of the questions on an examination administered by the State,
tribe, or territory under which you wish to obtain a falconry permit.
The examination must cover care and handling of falconry raptors,
Federal, State or territorial, and tribal (if applicable) laws and
regulations relevant to falconry, and other appropriate subject matter.
Contact your State, tribal, or territorial agency that regulates
falconry for information about permits and taking the test.
(4) Reinstatement of a lapsed falconry permit if your State, tribe,
or territory allows it. (i) If your permit has lapsed for fewer than 5
years, it may be reinstated at the level you held previously if you have
proof of your certification at that level.
(ii) If your permit has lapsed for 5 years or longer, you must
correctly answer at least 80 percent of the questions on an examination
administered by the State, tribe, or territory in which you wish to
obtain a falconry permit. If you pass the exam, your permit may be
reinstated at the level you previously held. Your facilities must pass
State, tribal, or territorial inspection before you may possess a
falconry bird.
(5) Permit to practice falconry at an appropriate level if you have
experience in falconry but are a new resident in the United States. You
may qualify for the falconry permit appropriate for your experience. To
demonstrate your knowledge of U.S. falconry laws and regulations, you
must correctly answer at least 80 percent of the questions on the
supervised examination for falconers administered by the State, tribe,
or territory under which you wish to obtain a falconry permit. If you
[[Page 91]]
pass the test, the State, tribe, or territory will decide for which
level of falconry permit you are qualified, consistent with the class
requirements in paragraph (c)(2) of this section. To do so, the State,
tribe, or territory should base its decision on your documentation of
your experience. Your falconry facilities must meet the standards in
paragraph (d)(1) of this section before you may keep a raptor to use in
falconry.
(6) Banding or tagging raptors used in falconry. (i) If you take a
goshawk, Harris's hawk (Parabuteo unicinctus), peregrine falcon (Falco
peregrinus), or gyrfalcon (Falco rusticolus) from the wild or acquire
one from another falconer or a rehabilitator, and if the raptor is not
already banded, you must band it with a permanent, nonreusable, numbered
U.S. Fish and Wildlife Service leg band that your State, tribal, or
territorial agency will supply. If you wish, you may purchase and
implant an ISO (International Organization for Standardization)-
compliant (134.2 kHz) microchip in addition to the band. You must report
the band number when you report your acquisition of the bird. Contact
your State, tribal, or territorial agency for information on obtaining
and disposing of bands. Within 10 days from the day on which you take
the raptor from the wild, you must report take of the bird by submitting
the required information (including the band number) using one of the
methods listed in paragraph (b)(2)(ii) of this section. You may request
an appropriate band from your State, tribal, or territorial agency in
advance of any effort to capture a raptor. Your State, tribe, or
territory may require that you band other species taken from the wild.
(ii) A raptor bred in captivity must be banded with a seamless metal
band (see Sec.21.30). If you must remove a seamless band or if it is
lost, within 10 days from the day you remove or note the loss of the
band, you must report it and request a replacement U.S. Fish and
Wildlife Service nonreusable band from your State, tribe, or territory.
You must submit the required information using one of the methods listed
in paragraph (b)(2)(ii) of this section. You must replace a seamless
band that is removed or lost. You may implant an ISO-compliant (134.2
kHz) microchip in a falconry raptor in addition to the seamless band.
(iii) If the band must be removed or is lost from a raptor in your
possession, you must report the loss of the band within 5 days, and you
must then do at least one of the following:
(A) Request a U.S. Fish and Wildlife Service nonreusable band from
your State, tribal, or territorial agency that regulates falconry. You
must submit the required information within 10 days of rebanding the
raptor using one of the methods listed in paragraph (b)(2)(ii) of this
section.
(B) Purchase and implant an ISO-compliant (134.2 kHz) microchip in
the bird and report the microchip information using one of the methods
listed in paragraph (b)(2)(ii) of this section.
(iv) You must not alter, deface, or counterfeit a band. You may
remove the rear tab on a band on a raptor you take from the wild, and
you may smooth any imperfect surface if you do not affect the integrity
of the band or the numbering on it.
(v) If you document health or injury problems for a raptor you
possess that are caused by the band, the State, tribe, or territory may
provide an exemption to the requirement for that raptor. In that case,
you must keep a copy of the exemption paperwork with you when
transporting or flying the raptor. If your bird is a wild goshawk,
Harris's hawk, peregrine falcon, or gyrfalcon, you must replace the band
with an ISO-compliant microchip that we will supply to your State,
tribe, or territory. We will not provide a microchip for a wild goshawk,
Harris's hawk, peregrine falcon, or gyrfalcon unless you have
demonstrated that a band causes an injury or a health problem for the
bird.
(vi) You may not band a raptor removed from the wild with a seamless
numbered band.
(7) Carrying your permit(s) when conducting falconry activities. You
must have your permit(s) or legible copies of them in your immediate
possession if you are not at the location of your falconry facilities
and you are trapping, transporting, working with, or flying your
falconry raptor(s).
[[Page 92]]
(8) Transporting a falconry raptor or raptors to other States or
territories. If you have a valid falconry permit, you may possess and
transport for falconry purposes a lawfully possessed raptor through
other States or territories. However, any State, tribe, or territory may
further regulate such transport.
(d) Facilities and care requirements--(1) Facilities you must have
and maintain. You must keep all raptors you hold under your falconry
permit in humane and healthful conditions.
(i) Whether they are indoors (a ``mews'') or outdoors (a
``weathering area''), your raptor facilities must protect raptors in
them from the environment, predators, and domestic animals. You are
responsible for the maintenance and security (protection from predators)
of raptors you possess under your permit.
(ii) You must have raptor housing facilities approved by your State,
tribe, or territory before you may obtain a bird to use in falconry.
Your State, tribe, or territory may require that you have both indoor
and outdoor facilities. A representative of your agency that regulates
falconry, or its designee, must certify that your facilities and
equipment meet the following standards:
(A) For housing raptors indoors or outdoors, the facility must
protect raptors from predators and domestic animals.
(1) The facility must have a suitable perch for each raptor, at
least one opening for sunlight, and must provide a healthy environment
for raptors inside.
(2) You may house untethered raptors together if they are compatible
with each other.
(3) Each raptor must have an area large enough to allow it to fly if
it is untethered or, if tethered, to fully extend its wings or bate
(attempt to fly while tethered) without damaging its feathers or
contacting other raptors.
(4) Each falconry bird must have access to a pan of clean water
unless weather conditions, the perch type used, or some other factor
makes access to a water pan unsafe for the raptor.
(B) An indoor facility must be large enough to allow easy access for
the care and feeding of raptors kept there.
(1) If raptors you house in this indoor facility are not tethered,
all walls that are not solid must be protected on the inside. Suitable
materials may include vertical bars spaced narrower than the width of
the body of the smallest raptor you house in the enclosure. However,
heavy-duty netting or other such materials may be used to cover the
walls or roof of the enclosure.
(2) Acceptable indoor facilities include shelf perch enclosures
where raptors are tethered side by side. Other innovative housing
systems are acceptable if they provide the enclosed raptors with
protection and allow them to maintain healthy feathers.
(3) An eyas raptor may be kept in any suitable container or
enclosure until it is capable of flight.
(C) You may keep a falconry raptor or raptors inside your place of
residence if you provide a suitable perch or perches. If you house your
raptor(s) inside your home, you do not need to modify windows or other
openings of the structure. Raptors kept in your home must be tethered
when they are not being moved into or out of the location in which they
are kept.
(D) An outdoor facility must be totally enclosed, and may be made of
heavy-gauge wire, heavy-duty plastic mesh, slats, pipe, wood, or other
suitable material.
(1) The facility must be covered and have at least a covered perch
to protect a raptor held in it from predators and weather.
(2) The facility must be large enough to insure that the birds
cannot strike the enclosure when flying from the perch.
(3) New types of housing facilities and/or husbandry practices may
be used if they satisfy the requirements above and are approved by the
State, tribal, or territorial authority regulating falconry.
(iii) You may keep falconry raptors outside in the open if they are
under watch, such as by you or a family member at any location or, for
example, by a designated individual in a weathering yard at a falconry
meet.
[[Page 93]]
(iv) You must inform your State, tribal, or territorial agency
within 5 business days if you change the location of your facilities.
(2) Falconry facilities on property you do not own--(i) Your
falconry facilities may be on property owned by another person where you
reside, or at a different location. Regardless of location, the
facilities must meet the standards in paragraph (d)(1) of this section
and those of the State, tribe, or territory from which you have a
falconry permit.
(ii) You must submit to your State, tribal, or territorial agency
that regulates falconry a signed and dated statement showing that you
agree that the falconry facilities and raptors may be inspected without
advance notice by State, tribal (if applicable), or territorial
authorities at any reasonable time of day, but you must be present. If
your facilities are not on property that you own, you must submit a
signed and dated statement showing that the property owner agrees that
the falconry facilities and raptors may be inspected by State, tribal
(if applicable), or territorial authorities at any reasonable time of
day in the presence of the property owner; except that the authorities
may not enter the facilities or disturb the raptors unless you are
present.
(3) Equipment you must have and maintain. You must have jesses or
the materials and equipment to make them, leash and swivel, bath
container, and appropriate scales or balances for weighing raptor(s) you
possess.
(4) Facilities you must have for a raptor when you are transporting
it, using it for hunting, or are away from your home with it. You must
be sure that the bird has a suitable perch and is protected from extreme
temperatures, wind, and excessive disturbance. A ``giant hood'' or
similar container is acceptable for transporting or housing a raptor
when you are away from the permanent facility where it is housed.
(5) Temporarily housing a raptor outside of your permanent
facilities when you are not transporting it or using it for hunting. You
may house a raptor in temporary facilities for no more than 120
consecutive calendar days if the bird has a suitable perch and is
protected from predators, domestic animals, extreme temperatures, wind,
and excessive disturbance.
(6) Care of falconry raptors by another falconry permittee. Another
falconry permittee may care for a raptor or raptors for you at your
facilities or at that person's facilities for up to 120 consecutive
calendar days. The other person must have a signed and dated statement
from you authorizing the temporary possession, plus a copy of FWS form
3-186A that shows that you are the possessor of each of the raptors. The
statement must include information about the time period for which he or
she will keep the raptor(s), and about what he or she is allowed to do
with it or them.
(i) Your raptor(s) will remain on your falconry permit, and will not
be counted against the possession limit of the person caring for your
raptors.
(ii) If the person caring for your raptor(s) holds the appropriate
level falconry permit, he or she may fly your raptor(s) in whatever way
you authorize, including hunting.
(iii) This care of your raptors may be extended indefinitely in
extenuating circumstances, such as illness, military service, or for a
family emergency. The State, tribe, or territory may consider such
instances on a case-by-case basis.
(7) Care of falconry raptors by someone who does not have a falconry
permit. Another person may care for falconry birds you possess at your
facilities for up to 45 consecutive calendar days.
(i) The raptor(s) will remain on your falconry permit.
(ii) The raptors must remain in your facilities.
(iii) This care may be extended indefinitely in extenuating
circumstances, such as illness, military service, or for a family
emergency.
(iv) The person(s) caring for your raptors may not fly them for any
reason.
(8) Residence part of the year in another jurisdiction. (i) The
State, tribe, or territory in which you live part-time may require that
you obtain its falconry permit. You must contact the State, tribal, or
territorial agency that regulates falconry to determine whether you need
a permit.
(ii) If you live for more than 120 consecutive days in a State or
territory or
[[Page 94]]
on tribal lands other than where you maintain your primary residence,
your falconry facilities in the second State must meet the standards in
this section.
(9) Inspections. Falconry equipment and records may be inspected in
the presence of the permittee during business hours on any day of the
week by State, tribal, or territorial officials.
(e) Taking, possessing, and transporting raptors for falconry--(1)
Raptor species you may take from the wild to use for falconry. (i) You
may not intentionally capture a raptor species that your classification
as a falconer does not allow you to possess for falconry. If you capture
a bird you are not allowed to possess, you must release it immediately.
(ii) On some tribal lands and in some States there may be State,
tribal, or Federal restrictions on the take or use of these species, and
you may need a tribal or State permit or permits to capture a bird.
(iii) State, tribal, or territorial regulations on take may be more
restrictive than those in this section.
(iv) Take of any species must be in compliance with these
regulations.
(v) If you are a Master Falconer and your State, tribe, or territory
allows you to possess golden eagles, in any year you may take up to two
golden eagles from the wild and only in a livestock depredation area
during the time the depredation area and associated depredation permit
or depredation control order are in effect. A livestock depredation area
is declared by USDA Wildlife Services and permitted under Sec.22.23,
or upon the request of a State governor and authorized by the Service
Director pursuant to Sec. Sec.22.31 and 22.32.
(2) How and when you may take raptors from the wild to use in
falconry. You may take no more than two raptors from the wild each year
to use in falconry.
(i) If you transfer a bird you take from the wild to another
permittee in the same year in which you capture it, the bird will count
as one of the raptors you are allowed to take from the wild that year;
it will not count as a capture by the recipient, though it will always
be considered a wild bird.
(ii) If you are a General or Master Falconer, you may remove
nestlings from a nest or aerie in accordance with tribal (if
applicable), State, territorial, and Federal restrictions.
(iii) You may not take raptors at any time or in any manner that
violates any law of the State, tribe, or territory on whose land you are
trapping.
(iv) If you are responsible for reporting take of a raptor from the
wild, use one of the methods listed in paragraph (b)(2)(ii) of this
section. You must do this at your first opportunity to do so, but no
later than 10 days after the capture of the bird.
(v) If you are present at the capture site, even if another person
captures the bird for you, you are considered the person who removes the
bird from the wild. You are responsible for filing a 3-186A form
reporting take of the bird from the wild. This would occur, for example,
if another person climbs a tree or rappells down a cliff and takes a
nestling for you and gives it to you at the tree or cliff.
(vi) If you are not at the immediate location where the bird is
taken from the wild, the person who removes the bird from the wild must
be a General or Master Falconer, and must report take of the bird. If
that person then transfers the bird to you, you must both file 3-186A
forms reporting the transaction at your first opportunity to do so, but
no later than 10 days after the transfer. The bird will count as one of
the two raptors the person who took it from the wild is allowed to
capture in any year. The bird will not count as a bird you took from the
wild. The person who takes the bird from the wild must report the take
even if he or she promptly transfers the bird to you.
(vii) If you have a long-term or permanent physical impairment that
prevents you from attending the capture of a species you can use for
falconry, a General or Master Falconer may capture a bird for you. You
are then responsible for filing a 3-186A form reporting take of the bird
from the wild, and the bird will count against the take of wild raptors
that you are allowed in any year.
(viii) You must promptly release any bird you capture
unintentionally.
(3) Other restrictions on taking raptors from the wild for falconry.
(i) If you are a General or Master Falconer, you may
[[Page 95]]
take only raptors less than 1 year of age from the wild during any
period or periods specified by the State, tribe, or territory. However,
you may take an American kestrel or great horned owl of any age from the
wild during any period or periods specified by the State, tribe, or
territory.
(ii) If you are a Master Falconer authorized to possess golden
eagles for use in falconry, you may capture a golden eagle in a
livestock or wildlife depredation area during the time the depredation
area and associated depredation permit or depredation control order are
in effect.
(A) You may capture an immature or subadult golden eagle.
(B) You may take a nestling from its nest in a livestock depredation
area if a biologist representing the agency responsible for declaring
the depredation area has determined that the adult eagle is preying on
livestock or wildlif
(C) You may take a nesting adult golden eagle only if a biologist
representing the agency responsible for declaring the depredation area
has determined that the adult eagle is preying on livestock or wildlife
and that any nestling of the adult will be taken by a falconer
authorized to possess it or by the biologist and transferred to an
individual authorized to possess it.
(D) You must determine the locations of the livestock or wildlife
depredation areas declared by USDA Wildlife Services, or published in
the Federal Register by the Service in response to a State governor's
request. We will not notify you about them.
(E) Before you begin any trapping activities, you must inform our
regional Law Enforcement office of your capture plans. You must notify
the office in person, in writing, or via facsimile or email at least 3
business days before you start trapping. You may send an email with your
trapping plans to [email protected], or you may deliver your
trapping plans in person or by mail to the Law Enforcement office in
your region at the applicable street address provided at 50 CFR 2.2.
Telephone and fax numbers are as follows:
------------------------------------------------------------------------
Law
enforcement Law
Region office enforcement
telephone office fax
number number
------------------------------------------------------------------------
1....................................... 503-231-6125 503-231-2193
2....................................... 505-248-7889 505-248-7899
3....................................... 612-713-5320 612-713-5283
4....................................... 404-679-7057 404-679-7065
5....................................... 413-253-8274 413-253-8459
6....................................... 303-236-7540 303-236-7901
7....................................... 907-786-3311 907-786-3313
8....................................... 916-414-6660 916-414-6715
------------------------------------------------------------------------
(F) You also must meet all requirements of the State or territory in
which you plan to trap, or the tribe on whose lands you plan to trap.
(G) You must have permission from the landowner to capture an eagle;
or if you wish to capture one on public land, the responsible agency
must allow it.
(iii) You may recapture a falconry bird you have lost at any time.
We do not consider recapture of a wild bird to be taking a bird from the
wild.
(iv) You may recapture a raptor wearing falconry equipment or a
captive-bred bird at any time - even if you are not allowed to possess
the species. The bird will not count against your possession limit, nor
will its take from the wild count against your limit. You must report
your recapture of the bird to your State, tribal, or territorial agency
that regulates falconry no more than 5 working days after the recapture.
You must return a recaptured falconry bird to the person who lost it, if
that person may legally possess it. Disposition of a bird whose legal
possession cannot be determined will be at the discretion of the State,
tribe, or territory.
(v) You may take any raptor that you are authorized to possess from
the wild if the bird is banded with a Federal Bird Banding Laboratory
aluminum bandexcept that you may not take a banded peregrine falcon from
the wild.
(A) If a raptor (including a peregrine falcon) you capture is marked
with a seamless metal band, a transmitter, or any other item identifying
it as a falconry bird, you must report your capture of the bird to your
State, tribal, or territorial agency that regulates falconry no more
than 5 working days after the capture. You must return a recaptured
falconry bird to the person who lost it. If that person cannot possess
the bird or does not wish to possess it, you may keep it. Otherwise,
[[Page 96]]
disposition of a bird whose legal possession cannot be determined will
be at the discretion of the State, tribe, or territory. While you keep a
bird for return to the person who lost it, the bird will not count
against your possession limit or your limit on take of raptors from the
wild if you have reported possessing the bird to your State, tribal, or
territorial falconry permit office.
(B) If you capture a peregrine falcon that has a research band (such
as a colored band with alphanumeric codes) or a research marking
attached to it, you must immediately release the bird, except that if
the falcon has a transmitter attached to it, you are authorized to
possess the bird up to 30 days if you wish to contact the researcher to
determine if he or she wishes to replace the transmitter or its
batteries. If the researcher wishes to do so, or to have the transmitter
removed, the researcher or his or her designee can make the change or
allow you to do so before you release the bird. If the researcher does
not wish to keep the transmitter on the falcon, you may keep the bird if
you captured it in circumstances in which capture of wild peregrines is
allowed.
(C) If a raptor you capture has any other band, research marking, or
transmitter attached to it, you must promptly report the band numbers
and all other relevant information to the Federal Bird Banding
Laboratory at 1-800-327-2263.
(1) You may contact the researcher and determine if he or she wishes
to replace a transmitter attached to a bird you capture. If so, you are
authorized to possess the bird up to 30 days until the researcher or his
or her designee does so, or until you can replace it yourself.
Disposition of the bird will be at the discretion of the researcher and
your State, tribal, or territorial agency that regulates falconry.
(2) If you possess such a bird temporarily, it will not count
against your possession limit for falconry raptors.
(vi) You must leave at least one young from any nest or aerie from
which you take a nestling.
(vii) If you are an Apprentice Falconer, you may not take a nestling
from the wild.
(viii) If you are a Master Falconer with a permit to do so, you may
take, transport, or possess up to three eagles, including golden eagles,
white-tailed eagles, or Steller's sea-eagles, subject to the
requirements in paragraph (c)(2)(iv) of this section and Sec.22.24 of
this part. A golden eagle, white-tailed eagle, or Steller's sea-eagle
you possess counts as a bird to be included under your possession limit.
(ix) If you are a General or Master Falconer, you may take no more
than one bird of a threatened species from the wild each year if the
regulations in part 17 of this subchapter allow it and if you obtain a
Federal endangered species permit to do so before you take the bird. You
also may need a State, tribal, or territorial endangered species permit
to take a listed species.
(4) Take of a species or subspecies that was recently removed from
the Federal List of Endangered and Threatened Wildlife to use in
falconry. We must first publish a management plan for the species. If
take is allowed in the management plan, you may do so in accordance with
the provisions for take in the plan.
(5) Raptors injured due to falconer trapping efforts. You have two
options for dealing with a bird injured by your trapping efforts. In
either case, you are responsible for the costs of care and
rehabilitation of the bird.
(i) You may put the bird on your falconry permit. You must report
take of the bird using one of the methods listed in paragraph (b)(2)(ii)
of this section at your first opportunity to do so, but no more than 10
days after capture of the bird. You must then have the bird treated by a
veterinarian or a permitted wildlife rehabilitator. The bird will count
against your possession limit.
(ii) You may give the bird directly to a veterinarian, or a
permitted wildlife rehabilitator, or an appropriate wildlife agency
employee. If you do so, it will not count against your allowed take or
the number of raptors you may possess.
(6) Acquisition, transfer, loss, or rebanding of a raptor. (i) If
you acquire a raptor; transfer, reband, or microchip a raptor; if a
raptor you possess is stolen; if you lose a raptor to the wild and you
[[Page 97]]
do not recover it within 30 days; or if a bird you possess for falconry
dies; you must report the change within 10 days using one of the methods
listed in paragraph (b)(2)(ii) of this section.
(ii) If a raptor you possess is stolen, you must report the theft to
your State, tribal, or territorial agency that regulates falconry and to
your Fish and Wildlife Service Regional Law Enforcement office (see
paragraph (e)(3)(ii)(E) of this section) within 10 days of the theft of
the bird.
(iii) You must keep copies of all electronic database submissions
documenting take, transfer, loss, rebanding or microchipping of each
falconry raptor until 5 years after you have transferred or lost the
bird, or it has died.
(7) Acquiring a bird for falconry from a permitted rehabilitator.
You may acquire a raptor of any age of a species that you are permitted
to possess directly from a rehabilitator. Transfer to you is at the
discretion of the rehabilitator.
(i) If you acquire a bird from a rehabilitator, within 10 days of
the transaction you must report it using one of the methods listed in
paragraph (b)(2)(ii) of this section.
(ii) If you acquire a bird from a rehabilitator, it will count as
one of the raptors you are allowed to take from the wild that year.
(8) Flying a hybrid raptor in falconry. When flown free, a hybrid
raptor must have attached at least two functioning radio transmitters to
help you to locate the bird.
(9) Releasing a falconry bird to the wild. You must follow all
applicable State or territorial and Federal laws and regulations before
releasing a falconry bird to the wild.
(i) If the raptor you wish to release is not native to the State or
territory, or is a hybrid of any kind, you may not permanently release
the bird to the wild. You may transfer it to another falconry permittee.
(ii) If the species you wish to release is native to the State or
territory and is captive-bred, you may not release the bird to the wild
unless you have permission from the State, tribe, or territory to
release the bird. If you are permitted to do so, you must hack the bird
(allow it to adjust) to the wild at an appropriate time of year and an
appropriate location. You must remove its falconry band (if it has one)
and report release of the bird by submitting the required information
using one of the methods listed in paragraph (b)(2)(ii) of this section.
(iii) If the species you wish to release is native to the State and
was taken from the wild, you may release the bird only at an appropriate
time of year and an appropriate location. You must remove its falconry
band and report release of the bird by submitting the required
information using one of the methods listed in paragraph (b)(2)(ii) of
this section.
(10) Restrictions on transfers of falconry raptors from other
falconers. We do not restrict the number of wild-caught or captive-bred
raptors transferred to you, but you may not exceed your possession
limit.
(f) Additional information on the practice of falconry--(1) Raptors
removed from the wild for falconry are always considered ``wild''
raptors. No matter how long such a bird is held in captivity or whether
it is transferred to another permittee or permit type, it is always
considered a ``wild'' bird. However, it is considered to be taken from
the wild only by the person who originally captured it. We do not
consider the raptor to be taken from the wild by any subsequent
permittee to whom it is legally transferred.
(2) ``Hacking'' of falconry raptors. Hacking (temporary release to
the wild) is an approved method for falconers to condition raptors for
falconry. If you are a General Falconer or a Master Falconer, you may
hack a falconry raptor or raptors.
(i) You may need permission from your State, tribal, or territorial
wildlife agency to hack a bird you possess for falconry. Check with your
State, tribal, or territorial agency that regulates falconry to
determine if hacking is allowed.
(ii) Any bird you are hacking counts against your possession limit
and must be a species you are authorized to possess.
(iii) Any hybrid you hack must have two attached functioning radio
transmitters during hacking.
[[Page 98]]
(iv) You may not hack a falconry bird near a nesting area of a
Federally threatened or endangered bird species or in any other location
where the raptor is likely to harm a Federally listed threatened or
endangered animal species that might be disturbed or taken by your
falconry bird. You should contact your State or territorial wildlife
agency before hacking a falconry bird to ensure that this does not
occur. You can contact the State Fish and Wildlife Service office in
your State or territory for information on Federally-listed species.
(3) Use of other falconry training or conditioning techniques. You
may use other acceptable falconry practices, such as, but not limited
to, the use of creance (tethered) flying, lures, balloons, or kites in
training or conditioning falconry raptors. You also may fly falconry
birds at bird species not protected under the Migratory Bird Treaty Act
or at pen-raised animals.
(4) Selling or trading raptors under a falconry permit. (i) If
allowed by your State, tribe or territory, you may sell, purchase, or
barter, or offer to sell, purchase, or barter captive-bred raptors
marked with seamless bands to other permittees who are authorized to
possess them.
(ii) You may not purchase, sell, trade, or barter wild raptors. You
may only transfer them.
(5) Transfer of wild-caught raptors captured for falconry to another
type of permit. Under some circumstances you may transfer a raptor to
another permit type if the recipient of the bird (which could be you)
possesses the necessary permits for the other activity.
(i) If your State, tribe, or territory allows you to do so, you may
transfer a wild-caught falconry bird to a raptor propagation permit
after the bird has been used in falconry for at least 2 years (1 year
for a sharp-shinned hawk, a Cooper's hawk, a merlin, or an American
kestrel). When you transfer the bird, you must provide a copy of the 3-
186A form documenting acquisition of the bird by the propagator to the
Federal migratory bird permit office that administers the propagation
permit.
(ii) You may transfer a wild-caught bird to another permit type in
less than 2 years (1 year for a sharp-shinned hawk, a Cooper's hawk, a
merlin, or an American kestrel) if the bird has been injured and a
veterinarian or permitted wildlife rehabilitator has determined that the
bird can no longer be flown for falconry.
(A) Within 10 days of transferring the bird , you must provide a
copy of the 3-186A form documenting acquisition of the bird to the
Federal migratory bird permit office that administers the other permit
type.
(B) When you transfer the bird, you must provide a copy of the
certification from the veterinarian or rehabilitator that the bird is
not useable in falconry to the Federal migratory bird permits office
that administers the other permit type.
(6) Transfer of captive-bred falconry raptors to another type of
permit. You may transfer captive-bred falconry raptors if the holder of
the other permit type is authorized to possess the bird(s). Within 10
days, you must report the transfer by submitting the required
information using one of the methods listed in paragraph (b)(2)(ii) of
this section.
(7) Use of raptors held under a falconry permit in captive
propagation. You may use raptors you possess for falconry in captive
propagation if you or the person overseeing the propagation has the
necessary permit(s) (see Sec.21.30). You do not need to transfer a
bird from your falconry permit if you use it for fewer than 8 months in
a year in captive propagation, but you must do so if you permanently
transfer the bird for propagation. The bird must then be banded as
required in Sec.21.30.
(8) Use of falconry raptors in conservation education programs. If
you are a General or Master Falconer, you may use a bird you possess in
conservation education programs presented in public venues.
(i) You do not need a Federal education permit to conduct
conservation education activities using a falconry raptor held under a
State, tribal, or territorial falconry permit.
(ii) You may present conservation programs as an Apprentice Falconer
if you are under the supervision of a General or Master Falconer when
you do so.
[[Page 99]]
(iii) You must use the bird primarily for falconry.
(iv) You may charge a fee for presentation of a conservation
education program. The fee may not exceed the amount required to recoup
your costs.
(v) In conservation education programs, you must provide information
about the biology, ecological roles, and conservation needs of raptors
and other migratory birds, although not all of these topics must be
addressed in every presentation. You may not give presentations that do
not address falconry and conservation education.
(vi) You are responsible for all liability associated with
conservation education activities you undertake (see 50 CFR 13.50).
(9) Other educational uses of falconry raptors. You may allow
photography, filming, or other such uses of falconry raptors to make
movies or other sources of information on the practice of falconry or on
the biology, ecological roles, and conservation needs of raptors and
other migratory birds, though you may not be paid for doing so.
(i) You may not use falconry raptors to make movies, commercials, or
in other commercial ventures that are not related to falconry.
(ii) You may not use falconry raptors for commercial entertainment;
for advertisements; as a representation of any business, company,
corporation, or other organization; or for promotion or endorsement of
any products, merchandise, goods, services, meetings, or fairs, with the
following exceptions:
(A) You may use a falconry raptor to promote or endorse a nonprofit
falconry organization or association.
(B) You may use a falconry raptor to promote or endorse products or
endeavors related to falconry, including, but not limited to items such
as hoods, telemetry equipment, giant hoods, perches, materials for
raptor facilities, falconry training and education materials, and
scientific research and publication.
(10) Assisting in rehabilitation of raptors to prepare them for
release. If your State, tribe, or territory allows you to do so, and if
you are a General or Master Falconer, you may assist a permitted
migratory bird rehabilitator to condition raptors in preparation for
their release to the wild. You may keep a bird you are helping to
rehabilitate in your facilities.
(i) The rehabilitator must provide you with a letter or form that
identifies the bird and explains that you are assisting in its
rehabilitation.
(ii) You do not need to meet the rehabilitator facility standards.
You need only meet the facility standards in this section; your
facilities are not subject to inspection for compliance with the
standards in Sec.21.31.
(iii) You do not have to add any raptor you possess for this purpose
to your falconry permit; it will remain under the permit of the
rehabilitator.
(iv) You must return any such bird that cannot be permanently
released to the wild to the rehabilitator for placement within the 180-
day timeframe in which the rehabilitator is authorized to possess the
bird, unless the issuing office authorizes you to retain the bird for
longer than 180 days.
(v) Upon coordination with the rehabilitator, you must release all
releaseable raptors to the wild or return them to the rehabilitator for
release within the 180-day timeframe in which the rehabilitator is
authorized to possess the birds, unless the issuing office authorizes
you to retain and condition a bird for longer than 180 days, or unless
the rehabilitator transfers the bird to you to hold under your falconry
permit.
(11) Using a falconry bird in abatement activities. (i) If you are a
Master Falconer, you may conduct abatement activities with a bird or
birds you possess for falconry. If you are a General Falconer, you may
conduct abatement activities only as a subpermittee of the holder of the
abatement permit.
(ii) You may receive payment for providing abatement services if you
have a Special Purpose Abatement permit.
(12) Feathers that a falconry bird or birds molts. (i) For imping
(replacing a damaged feather with a molted feather), you may possess
tail feathers and primary and secondary wing feathers for each species
of raptor you possess or previously held for as long as you have a valid
falconry permit. You may receive feathers for imping from other
permitted falconers, wildlife
[[Page 100]]
rehabilitators, or propagators in the United States, and you may give
feathers to them. You may not buy, sell, or barter such feathers.
(ii) You may donate feathers from a falconry bird, except golden
eagle feathers, to any person or institution with a valid permit to have
them, or to anyone exempt from the permit requirement under Sec.21.12.
(iii) Except for primary or secondary flight feathers or retrices
from a golden eagle, you are not required to gather feathers that are
molted or otherwise lost by a falconry bird. You may leave the feathers
where they fall, store them for imping, or destroy them. However, you
must collect molted flight feathers and retrices from a golden eagle. If
you choose not to keep them for imping, you must send them to the
National Eagle Repository.
(iv) We request that you send all feathers (including body feathers)
that you collect from any falconry golden eagle and that you do not need
for imping, to the National Eagle Repository at the following address:
U.S. Fish and Wildlife Service, National Eagle Repository, Rocky
Mountain Arsenal, Building 128, Commerce City, Colorado 80022. The
telephone number at the Repository is 303-287-2110.
(v) If your permit expires or is revoked, you must donate the
feathers of any species of falconry raptor except a golden eagle to any
person or any institution exempt from the permit requirement under Sec.
21.12 or authorized by permit to acquire and possess the feathers. If
you do not donate the feathers, you must burn, bury, or otherwise
destroy them.
(13) Disposition of carcasses of falconry birds that die. (i) You
must send the entire body of a golden eagle you held for falconry,
including all feathers, talons, and other parts, to the National Eagle
Repository.
(ii) You may donate the body or feathers of any other species of
falconry raptor to any person or institution exempt under Sec.21.12 or
authorized by permit to acquire and possess such parts or feathers.
(iii) If the bird was banded or microchipped prior to its death, you
may keep the body of any falconry raptor except that of a golden eagle.
You may keep the body so that the feathers are available for imping, or
you may have the body mounted by a taxidermist. You may use the mount in
giving conservation education programs. If the bird was banded, you must
leave the band on the body. If the bird has an implanted microchip, you
must leave the microchip in place.
(iv) If you do not wish to donate the bird body or feathers or keep
it yourself, you must burn, bury, or otherwise destroy it or them within
10 days of the death of the bird or after final examination by a
veterinarian to determine cause of death. Carcasses of euthanized
raptors could pose a risk of secondary poisoning of eagles and other
scavengers. You must take appropriate precautions to avoid such
poisonings.
(v) If you do not donate the bird body or feathers or have the body
mounted by a taxidermist, you may possess the flight feathers for as
long as you have a valid falconry permit. However, you may not buy,
sell, or barter the feathers. You must keep the paperwork documenting
your acquisition of the bird.
(14) Visitors practicing falconry in the United States. (i) A
visitor to the United States may qualify for a temporary falconry permit
appropriate for his or her experience.
(A) The permit may be valid for any period specified by the State,
tribe, or territory.
(B) To demonstrate knowledge of U.S. falconry laws and regulations,
the visitor must correctly answer at least 80 percent of the questions
on the supervised examination for falconers administered by the tribe,
State, or territory from which he or she wishes to obtain a temporary
falconry permit. If the visitor passes the test, the tribe, State, or
territory will decide for what level of temporary permit the person is
qualified. The decision should be based on the individual's
documentation of his or her experience.
(C) If you hold a temporary falconry permit, you may possess raptors
for falconry if you have approved falconry facilities.
(D) A holder of a temporary falconry permit may fly raptors held for
falconry by a permitted falconer.
[[Page 101]]
(E) A holder of a temporary falconry permit may not take a bird from
the wild to use in falconry.
(ii) For the duration of a permit from a State, tribe, or territory,
a visitor may use any bird for falconry that he or she possess legally
in his or her country of residence for that purpose, provided that
import of that species to the United States is not prohibited, and
provided that he or she has met all permitting requirements of his or
her country of residence.
(A) A visitor must comply with the provisions in this section, those
of the State, tribe or territory where he or she wishes to conduct
falconry, and all States through which he or she will travel with the
bird.
(B) The visitor may transport registered raptors. He or she may need
one or more additional permits to bring a raptor into the United States
or to return home with it (see 50 CFR part 14 (importation, exportation,
and transportation of wildlife), part 15 (Wild Bird Conservation Act),
part 17 (endangered and threatened species), part 21 (migratory bird
import and export permits), and part 23 (endangered species
convention)).
(C) Unless the visitor has the necessary permit(s) to bring a raptor
into the United States and leave it here, he or she must take raptors
brought into the country for falconry out of the country when he or she
leaves. If a raptor brought into the United States dies or is lost while
in this country, the visitor must document the loss before leaving the
United States by reporting the loss to the State, tribal, or territorial
agency that governs falconry where the bird was lost.
(D) When flown free, any bird brought to this country temporarily
must have two attached radio transmitters that will allow the falconer
to locate it.
(E)There also may be tribal or State restrictions on nonresidents
practicing falconry or importing a raptor or raptors held for falconry.
(15) Taking falconry raptors to another country to use in falconry
activities. A permit issued under this section authorizes you to export
and then import raptors you legally possess for falconry to another
country to use in falconry without an additional migratory bird import/
export permit issued under Sec.21.21.
(i) You must meet any requirements in 50 CFR 14 subpart B.
(ii) You may need one or more additional permits to take a bird from
the United States or to return home with it (see 50 CFR part 15 (Wild
Bird Conservation Act), part 17 (endangered and threatened species), and
part 23 (endangered species convention)).
(iii) Unless you have the necessary permit(s) to permanently export
a raptor from the United States, you must bring any raptor you take out
of the country for falconry back to the United States when you return.
Each raptor must be covered by a CITES certificate of ownership issued
under part 23 of this chapter. You must have full documentation of the
lawful origin of each raptor (a copy of a propagation report with band
number or a 3-186A report), and each must be identifiable with a
seamless band or a permanent, nonreusable, numbered Fish and Wildlife
Service leg band issued by the Service or an implanted microchip for
identification.
(iv) If the raptor dies or is lost, you are not required to bring it
back but must report the loss immediately upon your return to the United
States in the manner required by the falconry regulations of your State,
and any conditions on your CITES certificate.
(16) Permission to capture, fly, or release a falconry bird at any
location. You do not need special or written permission for any of these
activities on public lands if it is authorized. However, you must comply
with all applicable Federal, State, tribal, or territorial laws
regarding falconry activities, including hunting. Your falconry permit
does not authorize you to capture or release raptors or practice
falconry on public lands if it is prohibited on those lands, or on
private property, without permission from the landowner or custodian.
(17) Practicing falconry in the vicinity of a Federally listed
threatened or endangered animal species. In practicing falconry you must
ensure that your activities do not cause the take of Federally listed
threatened or endangered wildlife. ``Take'' under the Endangered
[[Page 102]]
Species Act means ``to harass, pursue, hunt, shoot, wound, kill, trap,
capture, or collect or attempt to engage in any such conduct''
(Endangered Species Act Sec.3(18)). Within this definition, ``harass''
means any act that may injure wildlife by disrupting normal behavior,
including breeding, feeding, or sheltering, and harm'' means an act that
actually kills or injures wildlife (50 CFR 17.3). To obtain information
about threatened or endangered species that may occur in your State or
on tribal lands where you wish to practice falconry, contact your State,
tribal, or territorial agency that regulates falconry. You can contact
your State Fish and Wildlife Service office for information on
Federally-listed species.
(18) Trapping a bird for use in falconry in areas used by the
northern aplomado falcon. Capture of a northern aplomado falcon (Falco
femoralis septentrionalis) is not authorized because it is a violation
of the Endangered Species Act. To avoid trapping northern aplomado
falcons, you must comply with the following conditions when trapping a
bird for use in falconry in the following counties.
------------------------------------------------------------------------
You may trap a bird for falconry
If you trap in in the following counties if you
comply with the conditions below.
------------------------------------------------------------------------
(i) Arizona, Cochise, Graham, Pima, Pinal, or
Santa Cruz.
------------------------------------------------------------------------
(ii) New Mexico, Doa Ana, Eddy, Grant, Hidalgo,
Lea, Luna, Otero, Sierra, or
Socorro.
------------------------------------------------------------------------
(iii) Texas, Aransas, Brewster, Brooks,
Calhoun, Cameron, Culberson,
Duval, Ector, El Paso, Hidalgo,
Hudspeth, Jackson, Jeff Davis,
Kenedy, Kinney, Kleberg,
Matagorda, Maverick, Midland,
Nueces, Pecos, Presidio, Reeves,
Refugio, San Patricio, Starr,
Terrell, Val Verde, Victoria,
Webb, Willacy, or Zapata.
------------------------------------------------------------------------
(iv) If you are an Apprentice Falconer, you must be accompanied by a
General or Master Falconer when trapping in one of these counties.
(v) You may not begin trapping if you observe a northern aplomado
falcon in the vicinity of your intended trapping effort.
(vi) You must suspend trapping if a northern aplomado falcon arrives
in the vicinity of your trapping effort.
(19) Prey item killed by a falconry bird without your intent,
including an animal taken outside of a regular hunting season. (i) You
may allow your falconry bird to feed on the animal, but you may not take
the animal into your possession.
(ii) You must report take of any federally listed threatened or
endangered species to our Ecological Services Field Office for the
location in which the take occurred.
(20) Take of bird species for which a depredation order is in place.
With a falconry bird, you may take any species listed in parts 21.43,
44, 45, or 46 of this subchapter at any time in accordance with the
conditions of the applicable depredation order, as long as you are not
paid for doing so.
(21) Transfer of falconry raptors if a permittee dies. A surviving
spouse, executor, administrator, or other legal representative of a
deceased falconry permittee may transfer any bird held by the permittee
to another authorized permittee within 90 days of the death of the
falconry permittee. After 90 days, disposition of a bird held under the
permit is at the discretion of the authority that issued it.
(g) Applying for a falconry permit. If you apply for a falconry
permit, you must include the following information plus any other
information required by your State, tribe, or territory.
(1) The completed application form from your State, tribal, or
territorial agency that regulates falconry permits.
(2) Proof that you have passed the falconry test administered by the
State, tribe, or territory where you maintain your legal residence, or
proof that you have previously held a falconry permit at the level you
seek.
(3) For an Apprentice permit, you must provide the following:
(i) A letter from a General or Master Falconer stating that he or
she has agreed to assist you in learning about the husbandry and
training of raptors held for falconry and about relevant wildlife laws
and regulations, and in
[[Page 103]]
deciding what species of raptor is appropriate for you to possess while
an Apprentice.
(ii) An original, signed certification that you are particularly
familiar with Sec.10.13 of this subchapter, the list of migratory bird
species to which the Migratory Bird Treaty Act applies; part 13 of this
subchapter, general permit regulations; part 21 of this subchapter,
migratory bird permits; and part 22 of this subchapter, eagle permits.
The certification can be incorporated into tribal and State application
forms, and must be worded as follows:
I certify that I have read and am familiar with the regulations in
title 50, part 13, of the Code of Federal Regulations and the other
applicable parts in subchapter B of chapter I of title 50, and that the
information I have submitted is complete and accurate to the best of my
knowledge and belief. I understand that any false statement herein may
subject me to the criminal penalties of 18 U.S.C. 1001.
(4) For an Apprentice or General Falconry permit, a parent or legal
guardian must co-sign your application if you are under 18.
(5) For a General Falconer permit:
(i) Information documenting your experience maintaining falconry
raptors, including a summary of what species you held as an Apprentice
Falconer and how long you possessed each bird, and
(ii) A letter from a General Falconer or Master Falconer (preferably
your sponsor) attesting that you have practiced falconry with raptor(s)
at the Apprentice Falconer level for at least 2 years, including
maintaining, training, flying, and hunting the raptor(s) for at least 4
months in each year.
(6) For a Master Falconer permit, you must attest that you have
practiced falconry at the General Falconer level for at least 5 years.
(h) Updating a falconry permit after a move. If you move to a new
State or outside the jurisdiction of your tribe or territory and take
falconry birds with you, within 30 days you must inform both your former
State, tribe, or territory and the permitting authority for your new
place of residence of your address change. To obtain a new falconry
permit, you must follow the permit application procedures of the
authority under which you wish to acquire a new permit. You may keep
falconry birds you hold while you apply for a new falconry permit.
However, the State, tribe, or territory into which you move may place
restrictions on your possession of falconry birds until you meet the
residency requirements there.
(i) Restoration of revoked permits. Upon request of the person whose
permit has been revoked, the State, tribe, or territory may restore the
person's falconry permit at the end of the revocation period.
(j) Information collection requirements. The information collection
required for falconry applications and for falconry bird disposition on
FWS Form 3-186A is approved by the Office of Management and Budget under
control number 1018-0022. The information is necessary to determine take
of raptors from the wild for falconry.
(k) Database required of States, tribes, and territories. Each
State, tribe, or territory that permits falconry must maintain
information in a database. The information will enable enforcement of
this section.
(1) The State, tribal, or territorial database must be compatible
with the database that we maintain. The State, tribal, or territorial
database must contain the following information:
(i) The current address of each person with a falconry permit.
(ii) The classification of each person with a falconry permit -
Apprentice Falconer, General Falconer, or Master Falconer.
(iii) The address of the falconry facilities of each person with a
falconry permit.
(iv) The Federal falconry identifier number assigned via the 3-186A
system to each person with a falconry permit.
(v) Whether each permittee is authorized to possess eagles.
(vi) Information on the status of each person's permit: whether it
is active, suspended, or revoked.
(2) Information on each permit granted, including changes in status
from Apprentice Falconer to General Falconer or General Falconer to
Master Falconer, and moves of falconers or their facilities must be
entered into the State's, tribe's, or territory's database within 30
days of the granting of the permit or a falconer's change in status. New
additions to the State,
[[Page 104]]
tribal, or territorial database must be forwarded to us monthly.
[73 FR 59465, Oct. 8, 2008, as amended at 74 FR 64640, Dec. 8, 2009; 75
FR 931, Jan. 7, 2010; 75 FR 3395, Jan. 21, 2010; 75 FR 81141, Dec. 27,
2010; 76 FR 71912, Nov. 21, 2011; 77 FR 66408, Nov. 5, 2012; 78 FR
35152, June 12, 2013; 78 FR 72832, Dec. 4, 2013; 80 FR 38015, July 2,
2015]
Sec.21.30 Raptor propagation permits.
(a) Legal basis for regulating raptor propagation. (1) Among other
actions, the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.)
prohibits any person from capturing from the wild, possessing,
purchasing, bartering, selling, or offering to purchase, barter, or sell
raptors (vultures, kites, eagles, hawks, caracaras, falcons, and owls)
listed in Sec.10.13 of this chapter unless the activities are allowed
by Federal permit issued pursuant to this part and part 13 of this
chapter, or as permitted by regulations in this part.
(i) This section covers all ``native'' raptors (accipitriformes,
falconiformes, and strigiformes listed in Sec.10.13 of this chapter),
and applies to any person who possesses one or more wild-caught,
captive-bred, or hybrid raptors protected under the MBTA to use in
raptor propagation, except that neither bald eagles (Haliaeetus
leucocephalus) nor golden eagles (Aquila chrysaetos) may be propagated
under these regulations or any other permit regulation listed in part 21
of this chapter.
(ii) You must have a Federal raptor propagation permit before you
may capture from the wild, possess, transport, import, purchase, barter,
or offer to sell, purchase, or barter any raptor, raptor egg, or raptor
semen for propagation purposes. Your State may require that you also
have a State permit.
(2) Other regulations, such as those for the Convention on
International Trade in Endangered Species of Wild Fauna and Flora, the
Wild Bird Conservation Act, and State regulations, may affect
propagation-related activities. In cases in which more than one set of
regulations affect raptor propagation, the most restrictive requirements
affecting the activity will apply.
(b) Species available for raptor propagation. If you have a raptor
propagation permit, you may attempt to propagate any species of raptor
listed in Sec.10.13 of this chapter, with the following exceptions:
(1) You may not propagate bald eagles (Haliaeetus leucocephalus) or
golden eagles (Aquila chrysaetos) under a raptor propagation permit or
any other permit regulation listed in part 21 of this chapter.
(2) If you are authorized by your Regional Migratory Bird Permit
office to do so, you may possess and attempt to propagate threatened or
endangered raptor species. See paragraphs (f) and (u) of this section.
(c) Facilities used for raptor propagation. In addition to the
general conditions found in part 13 of this chapter, raptor propagation
permits are subject to the following additional conditions:
(1) You must maintain any tethered raptor you possess under this
permit in accordance with the facilities and standards requirements in
Sec.21.29, unless you obtain a written exception to this requirement
from your Regional Migratory Bird Permit Office.
(2) For untethered raptors, your breeding facilities must be soundly
constructed and entirely enclosed with wood, wire netting, or other
suitable material that provides a safe, healthy environment.
(i) Your facilities must minimize the risk of injury by providing
protection from predators, pets, and extreme weather conditions.
(ii) Your facilities must minimize the risk of raptor injuries due
to collision with interior or perimeter construction materials and
equipment, such as support poles, windows, wire netting, perches, or
lights.
(iii) Your facilities must have suitable perches and nesting sites,
fresh air ventilation, a source of light, a well-drained floor, and
ready access for cleaning. Each bird must have access to a pan of clean
water unless weather conditions, the perch type used, or some other
factor makes access to a water pan unsafe for the raptor.
(iv) You do not need to house your propagation raptors separately
from other raptors you hold. However, you must keep raptors that you are
not authorized to propagate separated from those you use in propagation.
[[Page 105]]
(d) Inspection. In the presence of the permittee, Federal or State
officials may inspect propagation raptors, facilities, equipment, and
records during business hours on any day of the week.
(e) Banding of raptors used for propagation. --(1) Certain species.
You must band a goshawk (Accipiter gentilis), Harris's hawk (Parabuteo
unicinctus), peregrine falcon (Falco peregrinus), or gyrfalcon (Falco
rusticolus) that you take from the wild to use in captive propagation.
(i) You must use a nonreusable band that we provide.
(ii) You may purchase and implant an ISO (International Organization
for Standardization)-compliant 134.2 kHz microchip in the raptor in
addition to banding it.
(iii) You must report the information on the raptor (including
information identifying the microchip, if you implant one, and where it
is located) at http://permits.fws.gov/186A or by submitting a paper FWS
Form 3-186A form to your State or tribal agency that governs
propagation, if applicable, and to us.
(2) Banding nestlings. Unless a particular nestling is specifically
exempted, you must band every captive-bred raptor within 2 weeks of
hatching.
(i) You must use a numbered, seamless band that we will provide.
(ii) You must use a band with an inside diameter that is small
enough to prevent loss or removal of the band when the raptor is grown
without causing serious injury to the raptor or damaging the band's
integrity or one-piece construction.
(iii) You may band a nestling with more than one band of different
sizes if you cannot determine the proper size when you band the
nestling. You must then remove and destroy all but the correctly sized
band before the nestling is 5 weeks old.
(iv) You may submit a letter requesting an exemption from the
banding requirement for any nestling or fledgling for which the band
causes a problem. If you demonstrate that the band itself or the
behavior of the raptor in response to the band poses a hazard to the
raptor, we may exempt that raptor from the banding requirement. You must
destroy the band after you remove it.
(3) You may purchase and implant an ISO-compliant 134.2 kHz
microchip in the raptor in addition to a band. You must report
information to identify the microchip and where on the raptor the chip
is implanted when you report your acquisition of the raptor.
(4) If a captive-bred raptor is not banded with a seamless band, or
if you must remove the seamless band from a captive-bred raptor, you
must band the bird with a nonreusable band that we provide.
(f) Taking and transferring raptors or raptor eggs from the wild to
use in propagation. You may take no more than two raptors or raptor eggs
from the wild each year to use in propagation.
(1) The State must authorize you to take the raptor(s) or egg(s)
from the wild.
(2) You must comply with all State laws in taking raptor(s) or
egg(s) from the wild.
(3) You may take a raptor listed in Sec.17.11(h) of this chapter
as ``endangered'' or ``threatened'' from the wild only if you have a
permit under part 17 of this chapter (See paragraph (u) of this
section.).
(4) You may transfer a raptor taken from the wild for propagation to
any other person authorized to possess it, except that you must comply
with the prohibitions in Sec.21.29 on a transfer to a falconer.
(g) Transfer, purchase, sale, or barter of captive-bred raptors,
eggs, or semen. (1) You may transfer, sell, or barter a lawfully
possessed captive-bred raptor to another person authorized to possess
captive-bred raptors if the raptor is marked on the metatarsus by a
seamless, numbered band that we provide.
(2) You may transfer, sell, or barter a lawfully possessed raptor
egg or raptor semen produced by a raptor held under your captive
propagation permit (including a raptor taken from the wild) to another
raptor propagation permittee.
(3) You may not purchase, sell, or barter any raptor eggs or any
raptors taken from the wild in the United States or its territories or
possessions, any semen collected from a raptor in
[[Page 106]]
the wild in the United States or its territories or possessions, or any
raptor hatched from eggs taken from the wild in the United States or its
territories or possessions.
(h) Required paperwork. You must have a copy of a properly completed
FWS Form 3-186A (Migratory Bird Acquisition and Disposition Report) for
each raptor you acquire or that is transferred to you.
(1) You do not have to submit or have a copy of an FWS Form 3-186A
for raptors you produce by captive propagation if you keep the raptors
in your possession under your propagation permit.
(2) If you sell, trade, barter, or transfer a raptor held under your
captive propagation permit, even if the transfer is to a falconry permit
you hold, you must complete an FWS Form 3-186A and send it to us within
5 calendar days of the transfer.
(i) Care of a propagation raptor by another person--
(1) Care of a propagation raptor by another permittee. The
regulations in this paragraph pertain to care of propagation raptors by
persons other than the permittee. Another person who can legally possess
raptors may care for a propagation raptor for you for up to 120 calendar
days.
(i) The person must have a letter from you authorizing him or her to
care for the birds, beginning on the date of your letter.
(ii) The raptor will remain on your raptor propagation permit. If
the person who temporarily holds it for you is a falconer or a captive
propagator, the raptor will not be counted against his or her possession
limit on raptors held for falconry or propagation. However, the other
person may not use the raptor in falconry or in propagation.
(iii) If you wish to have someone else care for a propagation raptor
for more than 120 days, or if you wish to let another person use the
raptor in falconry or captive propagation, you must transfer the raptor
to that person and report the transfer by submitting a completed FWS
Form 3-186A.
(2) Care of a propagation raptor by an individual who does not have
a propagation or falconry permit. Another person may care for
propagation raptors you possess for up to 120 consecutive calendar days.
(i) The raptor(s) will remain on your propagation permit.
(ii) The raptors must remain in your facilities.
(iii) This care may be extended indefinitely in extenuating
circumstances, such as illness, military service, or for a family
emergency. The person(s) caring for your raptors may not fly them for
any reason.
(j) Care of nestlings by an individual who does not hold a migratory
bird permit. Another person may temporarily care for and band nestlings
you hold from the time they are hatched until they are fully feathered.
You may allow the other person to keep the nestlings at another
location. You must give the individual a letter authorizing him or her
to care for the nestlings, beginning on the date of your letter. The
care might be part of each day during the nestling period so that the
nestlings can be fed, or it might be a series of full days if transport
to and from the breeding facility is not practical or needed.
(k) Disposition of molted feathers from a live raptor or carcasses
of raptors held under your permit. (1) You may donate the body or
feathers of any species you possess under your propagation permit to any
person or institution exempt under Sec.21.12 or authorized by permit
to acquire and possess such parts or feathers.
(2) For any raptor you hold under your propagation permit, if the
bird was banded or microchipped prior to its death, you may keep the
body to have the feathers available for imping or to have the body
mounted by a taxidermist. You may use the mount in propagation
activities or in giving conservation education programs. If the bird was
banded, you must leave the band on the body. If the bird has an
implanted microchip, the microchip must be placed inside the mounted
bird.
(3) If you do not wish to donate the bird body or feathers or keep
it or them yourself, you must burn, bury, or otherwise destroy it or
them within 10 days of the death of the bird or after final examination
by a veterinarian to determine cause of death. Carcasses of euthanized
raptors could pose a risk of
[[Page 107]]
secondary poisoning of eagles and other scavengers. You must take
appropriate precautions to avoid such poisonings.
(4) If you do not donate the bird body or feathers or have the body
mounted by a taxidermist, you may possess the flight feathers for as
long as you have a valid raptor propagation or falconry permit. However,
you may not buy, sell, or barter the feathers. You must keep the
paperwork documenting your acquisition of the bird.
(l) Raptor products. You may possess addled or blown eggs, nests,
and feathers from raptors held under permit, and may transfer any of
these items to any other person authorized to possess them.
(m) Release to the wild. You may release a captive-bred raptor to
the wild if it is allowed by the State or territory in which you wish to
release the raptor, except that you may not release a hybrid raptor to
the wild. You must leave the captive-bred band on any raptor you release
to the wild.
(n) Conservation education programs. You may use a raptor you
possess for raptor propagation in conservation education programs
presented in public venues.
(1) You do not need a Federal education permit to conduct
conservation education activities using a propagation raptor.
(2) You must use the raptor primarily for propagation.
(3) You may charge a fee for presentation of a conservation
education program. The fee may not exceed the amount required to recoup
your costs.
(4) In conservation education programs, you must provide information
about the biology, ecological roles, and conservation needs of raptors
and other migratory birds, although not all of these topics must be
addressed in every presentation. You may not give presentations that do
not address falconry and conservation education.
(5) You are responsible for all liability associated with
conservation education activities you undertake (see Sec.13.50 of this
chapter).
(o) Permit restrictions. With limited exceptions, you may use
raptors held under your captive propagation permit only for propagation
or keep them to transfer or sell. You must transfer a raptor used in
captive propagation to a falconry permit before you or another person
may use it in falconry. If you transfer a raptor used in captive
propagation to another permit, you and the recipient of the raptor
(which might be you) must complete an FWS Form 3-186A and report the
transfer. You do not need to transfer a bird from your falconry permit
(if you hold one) if you use the bird for fewer than 8 months in a year
in captive propagation, but you must do so if you permanently transfer
the bird for propagation. The bird must then be banded as required in
paragraph (e).
(p) Training propagation raptors. You may use falconry training or
conditioning practices such as, but not limited to, creance (tethered)
flying, lures, balloons, or kites in training or conditioning captive-
bred progeny of raptors you hold under your permit.
(1) Until the raptors are 1 year old, you may use captive-bred
offspring in actual hunting as a means of training them. To do so, you
will not need to transfer them to another permit type. You may not use
them in hunting after their first year if they are held under your
captive propagation permit.
(2) Any hybrid raptor that you fly free must have at least two
attached radio transmitters to help you to locate the bird.
(3) You may not hunt at any time with raptors you use in
propagation.
(q) Hacking of propagation raptors. ``Hacking'' (temporary release
to the wild) is an approved method to condition raptors. You may hack a
raptor that you produce under your propagation permit.
(1) You may need permission from your State or tribal wildlife
agency to hack a raptor you possess under your propagation permit. Check
with your State or tribal agency that regulates falconry to determine if
hacking is allowed.
(2) Any hybrid you hack must have two attached functioning radio
transmitters during hacking.
(3) You may not hack a raptor near a nesting area of a federally
threatened or endangered bird species or in any other location where the
raptor is likely to harm a federally listed threatened
[[Page 108]]
or endangered animal species that might be disturbed or taken by your
falconry raptor. You should contact your State or territorial wildlife
agency before hacking a falconry raptor to ensure that this does not
occur. Contact the Fish and Wildlife Service office in your State or
territory for information on federally listed species.
(r) Transfer of propagation raptors and offspring if a permittee
dies. A surviving spouse, executor, administrator, or other legal
representative of a deceased raptor propagation permittee may transfer
any bird, eggs, or semen held by the deceased permittee to another
authorized permittee within 90 days of the death of the falconry
permittee. After 90 days, disposition of a bird held under the permit is
at our discretion.
(s) Records of captive propagation efforts. You must maintain
complete and accurate records of all operations, including the
following, for at least 5 years after the expiration of your permit.
However, you may want to retain your records for a longer time if you
want to get another migratory bird permit, a Convention on International
Trade in Endangered Species of Wild Fauna and Flora permit, or a Wild
Bird Conservation Act permit.
(1) The acquisition of raptors, eggs, or semen you acquired from the
wild or that were transferred to you.
(i) What you acquired, and the species, sex, age, and band number of
each bird you acquired.
(ii) Whether you acquired the raptor, egg, or semen from the wild or
you purchased it or it was transferred to you.
(2) The disposition of raptors, eggs, or semen you sell or transfer
to another permittee. The information should include the band number of
raptors you sell or transfer.
(t) Annual report. You must submit a completed FWS Form 3-202-8 to
your Regional Migratory Bird Permit office by January 31 each year for
January 1 through December 31 of the preceding year.
(u) Endangered or threatened species. If you wish to propagate
endangered or threatened species, you must have at least 2 years of
experience handling raptors in a propagation program or programs. You
may also need an endangered species permit to propagate threatened or
endangered raptors. See Sec. Sec.17.21 and 17.22 of this chapter for
permit requirements to propagate threatened or endangered raptors.
(v) Applying for a Federal raptor propagation permit. Using FWS Form
3-200-12, you must submit your application for a raptor propagation
permit to the appropriate Regional Director, to the attention of the
Migratory Bird Permit Office. You can find addresses for the Regional
Directors in 50 CFR 2.2. Your application must contain the general
information and the certification required in Sec.13.12(a) of this
chapter, a copy of your State permit authorizing raptor propagation, if
your State requires one, and a description (including dimensions),
drawings, and photographs of the facilities and equipment you will use.
(w) Criteria for issuing a permit. When we receive a completed
application, we will decide whether we should issue a permit to you. We
will consider the general criteria in part 13 of this chapter and the
following factors:
(1) You must be at least 18 years old and have at least 2 full years
of experience handling raptors.
(2) You must have a propagation permit or other authorization for
raptor propagation from your State or Tribe, if your State or Tribe
requires it.
(3) Your raptor propagation facilities must be adequate for the
number and species of raptors to be held under your permit.
(x) Updating a raptor propagation permit after a move. If you move
within your State or get a new mailing address, you must notify us
within 30 days (see Sec.13.23(c) of this chapter). If you move to a
new State, within 30 days you must inform both your former and your new
(if applicable) Migratory Bird Permit Offices of your address change. If
you have new propagation facilities, you must provide information,
pictures, and diagrams of them, and they may be inspected in accordance
with Federal or State requirements. Thereafter, no mandatory inspections
of the facilities will continue.
(y) Permit expiration. Your Federal permit may be valid for up to 5
years from when it is issued or renewed. It will expire on the same day
as your
[[Page 109]]
State permit, unless your State permit is for a period longer than 5
years, or unless we amend, suspend, or revoke it.
[76 FR 29667, May 23, 2011]
Sec.21.31 Rehabilitation permits.
(a) What is the permit requirement? Except as provided in Sec.
21.12, a rehabilitation permit is required to take, temporarily possess,
or transport any migratory bird for rehabilitation purposes. However,
any person who finds a sick, injured, or orphaned migratory bird may,
without a permit, take possession of the bird in order to immediately
transport it to a permitted rehabilitator.
(b) What are the general permit provisions? (1) The permit
authorizes you to:
(i) Take from the wild or receive from another person sick, injured,
or orphaned migratory birds and to possess them and provide
rehabilitative care for them for up to 180 days;
(ii) Transport such birds to a suitable habitat for release, to
another permitted rehabilitator's facilities, or to a veterinarian;
(iii) Transfer, release, or euthanize such birds;
(iv) Transfer or otherwise dispose of dead specimens; and
(v) Receive, stabilize, and transfer within 48 hours types of
migratory bird species not authorized by your permit, in cases of
emergency. If a rehabilitator authorized to care for the bird is not
available within that timeframe, you must contact the issuing office for
authorization to retain the bird until it can be transferred.
(2) The permit does not authorize the use of migratory birds for
educational purposes.
(c) How do I apply for a migratory bird rehabilitation permit? You
must apply to the appropriate Regional Director--Attention Migratory
Bird Permit Office. You can find addresses for the appropriate Regional
Directors in Sec.2.2 of subchapter A of this chapter. Your application
package must consist of the following:
(1) A completed application (Form 3-200-10b);
(2) A copy of your State rehabilitation permit, license, or other
authorization, if one is required in your State; and
(3) A check or money order made payable to the ``U.S. Fish and
Wildlife Service'' in the amount of the application fee for permits
issued under this section listed in Sec.13.11 of this chapter.
(d) What criteria will the Service consider before issuing a permit?
(1) Upon receiving an application completed in accordance with paragraph
(c) of this section, the Regional Director will decide whether to issue
you a permit based on the general criteria of Sec.13.21 of this
chapter and whether you meet the following requirements:
(i) You must be at least 18 years of age with at least 100 hours of
hands-on experience, gained over the course of at least 1 whole year,
rehabilitating the types of migratory birds you intend to rehabilitate
(e.g., waterbirds, raptors), or comparable experience. Up to 20 hours of
the 100-hour time requirement may be fulfilled by participation in
migratory bird rehabilitation seminars and courses.
(ii) Your facilities must be adequate to properly care for the
type(s) of migratory bird species you intend to rehabilitate, or you
must have a working relationship with a person or organization with such
facilities.
(iii) You must have an agreement with a licensed veterinarian to
provide medical care for the birds you intend to rehabilitate, unless
you are a licensed veterinarian.
(iv) You must have a State permit, license, or other authorization
to rehabilitate migratory birds if such authorization required by your
State.
(2) In issuing a permit, the Regional Director may place
restrictions on the types of migratory bird species you are authorized
to rehabilitate, based on your experience and facilities as well as on
the specific physical requirements and behavioral traits of particular
species.
(e) What are the standard conditions for this permit? In addition to
the general permit conditions set forth in part 13 of this chapter,
rehabilitation permits are subject to the following conditions:
(1) Facilities. You must conduct the activities authorized by this
permit in appropriate facilities that are approved
[[Page 110]]
and identified on the face of your permit. In evaluating whether caging
dimensions are adequate, the Service will use as a guideline the
standards developed by the National Wildlife Rehabilitators Association
and the International Wildlife Rehabilitation Council (Minimum Standards
for Wildlife Rehabilitation, 2000). \1\ The Regional Migratory Bird
Permit Office will authorize variation from the standards where doing so
is reasonable and necessary to accommodate a particular rehabilitator's
circumstances, unless a determination is made that such variation will
jeopardize migratory birds. However, except as provided by paragraph
(f)(2)(i) of this section, all facilities must adhere to the following
criteria:
---------------------------------------------------------------------------
\1\ Copies may be obtained by contacting either the National
Wildlife Rehabilitators Association: 14 North 7th Avenue, St. Cloud MN
56303-4766, http://www.nwawildlife.org/default.asp; or the International
Wildlife Rehabilitation Council: 829 Bancroft Way, Berkeley, CA 94710,
http://www.iwrc-online.org.
---------------------------------------------------------------------------
(i) Rehabilitation facilities for migratory birds must be secure and
provide protection from predators, domestic animals, undue human
disturbance, sun, wind, and inclement weather.
(ii) Caging must be made of a material that will not entangle or
cause injury to the type of birds that will be housed within.
(iii) Enclosures must be kept clean, well-ventilated, and hygienic.
(iv) Birds must not be overcrowded, and must be provided enough
perches, if applicable.
(v) Birds must be housed only with compatible migratory bird
species.
(vi) Birds may not be displayed to the public unless you use video
equipment, barriers, or other methods to reduce noise and exposure to
humans to levels the birds would normally encounter in their habitat.
You may not use any equipment for this purpose that causes stress or
harm, or impedes the rehabilitation of any bird.
(2) Dietary requirements. You must provide the birds in your care
with a diet that is appropriate and nutritionally approximates the
natural diet consumed by the species in the wild, with consideration for
the age and health of the individual bird.
(3) Subpermittees. Except as provided by paragraph (f)(2)(ii) of
this section, anyone who will be performing activities that require
permit authorization under paragraph (b)(1) of this section when you or
a subpermittee are not present, including any individual who transports
birds to or from your facility on a regular basis, must either possess a
Federal rehabilitation permit or be authorized as your subpermittee by
being named in writing to your issuing Migratory Bird Permit Office.
This does not apply to General Falconers or Master Falconers, who may
assist with conditioning raptors for release without being your
subpermittee. If you have a falconer assist in conditioning a
rehabilitated raptor for release, you must provide the falconer with a
letter or form that identifies the bird and explains that the falconer
is assisting in rehabilitation of the raptor.
(i) Your subpermittees must be at least 18 years of age and possess
sufficient experience to tend the species in their care.
(ii) Your subpermittees who are authorized to care for migratory
birds at a site other than your facility must have facilities adequate
to house the species in their care, based on the criteria of paragraph
(e)(1) of this section. All such facilities except those of a falconer
assisting in conditioning raptors for release must be approved by the
issuing office.
(iii) As the primary permittee, you are legally responsible for
ensuring that your subpermittees, staff, and volunteers adhere to the
terms of your permit when conducting migratory bird rehabilitation
activities.
(4) Disposition of birds under your care. (i) You must take every
precaution to avoid imprinting or habituating birds in your care to
humans. If a bird becomes imprinted to humans while under your care, you
will be required to transfer the bird as directed by the issuing office.
(ii) After a bird is rehabilitated to a condition suitable for
release to the wild, you must release it to suitable habitat as soon as
seasonal conditions allow, except that you may transfer a rehabilitated
wild raptor to a holder of a State, tribal, or territorial falconry
[[Page 111]]
permit if the permit holder is authorized to hold the species for use in
falconry. The transfer may need the approval of your State, tribe, or
territory. The falconer must complete a Form 3-186A reporting the
transfer.
(A) You may not retain migratory birds longer than 180 days without
additional authorization from your Regional Migratory Bird Permit
Office. If the appropriate season for release is outside the 180-day
timeframe, you must seek authorization from your Fish and Wildlife
Service Regional Migratory Bird Permit Office to possess the bird until
the appropriate season.
(B) Before releasing a threatened or endangered migratory bird, you
must comply with any requirements for the release from your Fish and
Wildlife Service Regional Migratory Bird Permit Office.
(iii) You must euthanize any bird that cannot feed itself, perch
upright, or ambulate without inflicting additional injuries to itself
where medical and/or rehabilitative care will not reverse such
conditions. You must euthanize any bird that is completely blind, and
any bird that has sustained injuries that would require amputation of a
leg, a foot, or a wing at the elbow or above (humero-ulnar joint) rather
than performing such surgery, unless:
(A) A licensed veterinarian submits a written recommendation that
the bird should be kept alive, including an analysis of why the bird is
not expected to experience the injuries and/or ailments that typically
occur in birds with these injuries and a commitment (from the
veterinarian) to provide medical care for the bird for the duration of
its life, including complete examinations at least once a year;
(B) A placement is available for the bird with a person or facility
authorized to possess it, where it will receive the veterinary care
described in paragraph (e)(4)(iii)(A) of this section; and
(C) The issuing office specifically authorizes continued possession,
medical treatment, and rehabilitative care of the bird.
(iv) You must obtain authorization from your issuing Migratory Bird
Permit Office before euthanizing endangered and threatened migratory
bird species. In rare cases, the Service may designate a disposition
other than euthanasia for those birds. If Service personnel are not
available, you may euthanize endangered and threatened migratory birds
without Service authorization when prompt euthanasia is warranted by
humane consideration for the welfare of the bird.
(v) You may place nonreleasable live birds that are suitable for use
in educational programs, foster parenting, research projects, or other
permitted activities with persons permitted or otherwise authorized to
possess such birds, with prior approval from your issuing Migratory Bird
Permit Office.
(vi)(A) You may donate dead birds and parts thereof, except
threatened and endangered species, and bald and golden eagles, to
persons authorized by permit to possess migratory bird specimens or
exempted from permit requirements under Sec.21.12.
(B) You must obtain approval from your issuing office before
disposing of or transferring any live or dead endangered or threatened
migratory bird specimen, parts, or feathers.
(C) You must send all dead bald and golden eagles, and their parts
and feathers to: National Eagle Repository, Building 128, Rocky Mountain
Arsenal, Commerce City, CO 80022. If your State requires you to notify
State wildlife officers of a dead bald or golden eagle before sending
the eagle to the Repository you must comply with State regulations.
States may assume temporary possession of the carcasses for purposes of
necropsy.
(D) Unless specifically required to do otherwise by the Service, you
must promptly destroy all other dead specimens by such means as are
necessary to prevent any exposure of the specimens to animals in the
wild.
(vii) With authorization from your issuing Migratory Bird Permit
Office, you may hold a nonreleasable bird longer than 180 days for the
purpose of fostering juveniles during their rehabilitation. You may also
use birds you possess under an educational permit to foster juveniles.
(viii) You may possess a reasonable number of feathers for imping
purposes, based on the numbers and species of birds for which you
regularly provide care.
[[Page 112]]
(ix) You may draw blood and take other medical samples for purposes
of the diagnosis and recovery of birds under your care, or for transfer
to authorized facilities conducting research pertaining to a contagious
disease or other public health hazard.
(x) You may conduct necropsies on dead specimens in your possession,
except that you must obtain approval from your Regional Migratory Bird
Permit Office before conducting necropsies on threatened or endangered
species.
(xi) This permit does not confer ownership of any migratory bird.
All birds held under this permit remain under the stewardship of the
U.S. Fish and Wildlife Service.
(5) Notification to the U.S. Fish and Wildlife Service. (i) You must
notify your issuing Migratory Bird Permit Office within 24 hours of
acquiring a threatened or endangered migratory bird species, or bald or
golden eagle, whether live or dead. You may be required to transfer
these birds to another facility designated by the Service.
(ii) You must immediately notify the local U.S. Fish and Wildlife
Service Law Enforcement Office if you have reason to believe a bird has
been poisoned, electrocuted, shot, or otherwise subjected to criminal
activity. Contact information for your local Service Law Enforcement
office is listed on your permit, or you can obtain it on the Internet at
http://offices.fws.gov.
(iii) If the sickness, injury, or death of any bird is due or likely
due to avian virus, or other contagious disease or public health hazard,
you must notify and comply with the instructions given by the State or
local authority that is responsible for tracking the suspected disease
or hazard in your location, if that agency is currently collecting such
information from the public.
(6) You must maintain a working relationship with a licensed
veterinarian. If your working relationship with your original
cooperating veterinarian is dissolved, you must establish an agreement
within 30 days with another licensed veterinarian to provide medical
services to the birds in your care, and furnish a copy of this agreement
to the issuing office.
(7) Recordkeeping. You must maintain complete and accurate records
of all migratory birds that you receive, including for each bird the
date received, type of injury or illness, disposition, and date of
disposition. You must retain these records for 5 years following the end
of the calendar year covered by the records.
(8) Annual report. You must submit an annual report that includes
the information required by paragraph (e)(7) for the preceding calendar
year to your issuing Migratory Bird Permit Office by the date required
on your permit. You may complete Service Form 3-202-4, or submit your
annual report from a database you maintain, provided your report
contains all, and only, the information required by Form 3-202-4.
(9) At the discretion of the Regional Director, we may stipulate on
the face of your permit additional conditions compatible with the permit
conditions set forth in this section, to place limits on numbers and/or
types of birds you may possess under your permit, to stipulate
authorized location(s) for your rehabilitation activities, or otherwise
specify permitted activities, based on your experience and facilities.
(f) How does this permit apply to oil and hazardous waste spills?
Prior to entering the location of an oil or hazardous material spill,
you must obtain authorization from the U.S. Fish and Wildlife Service
Field Response Coordinator or other designated Service representative
and obtain permission from the On-Scene Coordinator. All activities
within the location of the spill are subject to the authority of the On-
Scene Coordinator. The U.S. Fish and Wildlife Service is responsible for
the disposition of all migratory birds, dead or alive.
(1) Permit provisions in oil or hazardous material spills. (i) In
addition to the rehabilitation permit provisions set forth in paragraph
(b) of this section, when under the authority of the designated U.S.
Fish and Wildlife Service representative this permit further authorizes
you to temporarily possess healthy, unaffected birds for the purpose of
removing them from imminent danger.
(ii) This permit does not authorize salvage of dead migratory birds.
When
[[Page 113]]
dead migratory birds are discovered, a Service law enforcement officer
must be notified immediately in order to coordinate the handling and
collection of evidence. Contact information for your local Service Law
Enforcement office is listed on your permit and on the Internet at
http://offices.fws.gov. The designated Service representative will have
direct control and responsibility over all live migratory birds, and
will coordinate the collection, storage, and handling of any dead
migratory birds with the Service's Division of Law Enforcement.
(iii) You must notify your issuing Migratory Bird Permit Office of
any migratory birds in your possession within 24 hours of removing such
birds from the area.
(2) Conditions specific to oil and hazardous waste spills--(i)
Facilities. Facilities used at the scene of oil or hazardous waste
spills may be temporary and/or mobile, and may provide less space and
protection from noise and disturbance than facilities authorized under
paragraph (e)(1) of this section. Such facilities should conform as
closely as possible with the facility specifications contained in the
Service policy titled Best Practices for Migratory Bird Care During Oil
Spill Response.\2\
---------------------------------------------------------------------------
\2\ You can obtain copies of this document by writing to the
Division of Environmental Review at the address provided at 50 CFR
2.1(b).
---------------------------------------------------------------------------
(ii) Subpermittees. In cases of oil and hazardous waste spills,
persons who assist with cleaning or treating migratory birds at the on-
scene facility will not be required to have a rehabilitation permit or
be a subpermittee; however, volunteers must be trained in rescue
protocol for migratory birds affected by oil and hazardous waste spills.
A permit (or subpermittee designation) is required to perform extended
rehabilitation of such birds, after initial cleaning and treating, at a
subsequent location.
(g) Will I also need a permit from the State in which I live? If
your State requires a license, permit, or other authorization to
rehabilitate migratory birds, your Federal migratory bird rehabilitation
permit will not be valid if you do not also possess and adhere to the
terms of the required State authorization, in addition to the Federal
permit. Nothing in this section prevents a State from making and
enforcing laws or regulations consistent with this section that are more
restrictive or give further protection to migratory birds.
(h) How long is a migratory bird rehabilitation permit valid? Your
rehabilitation permit will expire on the date designated on the face of
the permit unless amended or revoked. No rehabilitation permit will have
a term exceeding 5 years.
[68 FR 61137, Oct. 27, 2003, as amended at 73 FR 59477, Oct. 8, 2008; 75
FR 29918, May 28, 2010; 79 FR 43965, July 29, 2014]
Subpart D_Control of Depredating and Otherwise Injurious Birds
Sec.21.41 Depredation permits.
(a) Permit requirement. Except as provided in Sec. Sec.21.43,
21.44, and 21.46, a depredation permit is required before any person may
take, possess, or transport migratory birds for depredation control
purposes. No permit is required merely to scare or herd depredating
migratory birds other than endangered or threatened species or bald or
golden eagles.
(b) Application procedures. Submit application for depredation
permits to the appropriate Regional Director (Attention: Migratory bird
permit office). You can find addresses for the Regional Directors in 50
CFR 2.2. Each application must contain the general information and
certification required in Sec.13.12(a) of this subchapter, and the
following additional information:
(1) A description of the area where depredations are occurring;
(2) The nature of the crops or other interests being injured;
(3) The extent of such injury; and
(4) The particular species of migratory birds committing the injury.
(c) Additional permit conditions. Inaddition to the general
conditions set forth in part 13 of this subchapter B, depredation
permits shall be subject to requires, in this section:
(1) Permittees may not kill migratory birds unless specifically
authorized on the permit.
[[Page 114]]
(2) Unless otherwise specifically authorized, when permittees are
authorized to kill migratory birds they may do so only with a shotgun
not larger than No. 10 gauge fired from the shoulder, and only on or
over the threatened area or area described on the permit.
(3) Permittees may not use blinds, pits, or other means of
concealment, decoys, duck calls, or other devices to lure or entice
birds within gun range.
(4) All migratory birds killed shall be retrieved by the permittee
and turned over to a Bureau representative or his designee for
disposition to charitable or other worthy institutions for use as food,
or otherwise disposed of as provided by law.
(5) Only persons named on the permit are authorized to act as agents
of the permittee under authority of the permit.
(d) Tenure of permits. The tenure of depredation permits shall be
limited to the dates which appear on its face, but in no case shall be
longer than one year.
[39 FR 1178, Jan. 4, 1974, as amended at 42 FR 17122, Mar. 31, 1977; 63
FR 52637, Oct. 1, 1998; 80 FR 15691, Mar. 25, 2015]
Sec.21.42 [Reserved]
Sec.21.43 Depredation order for blackbirds, cowbirds, crows,
grackles, and magpies.
(a) Species covered.
----------------------------------------------------------------------------------------------------------------
Blackbirds Cowbirds Crows Grackles Magpies
----------------------------------------------------------------------------------------------------------------
Brewer's (Euphagus Bronzed (Molothrus American (Corvus Boat-tailed Black-billed (Pica
cyanocephalus) aeneus) brachyrhynchos) (Quiscalus major) hudsonia)
Red-winged (Agelaius Brown-headed Fish (Corvus Common (Quiscalus
phoeniceus) (Molothrus ater) ossifragus) quiscula)
Yellow-headed Shiny (Molothrus Northwestern (Corvus Great-tailed
(Xanthocephalus bonariensis) caurinus) (Quiscalus
xanthocephalus) mexicanus)
..................... ..................... Greater Antillean ....................
(Quiscalus niger)
----------------------------------------------------------------------------------------------------------------
(b) Conditions under which control is allowed by private citizens.
You do not need a Federal permit to control the species listed in
paragraph (a) of this section in the following circumstances:
(1) Where they are causing serious injuries to agricultural or
horticultural crops or to livestock feed;
(2) When they cause a health hazard or structural property damage;
(3) To protect a species recognized by the Federal Government as an
endangered, threatened, or candidate species in any county in which it
occurs, as shown in the Service's Environmental Conservation Online
System (http://ecos.fws.gov);
(4) To protect a species recognized by the Federal Government as an
endangered or threatened species in designated critical habitat for the
species; or
(5) To protect a species recognized by a State or Tribe as
endangered, threatened, candidate, or of special concern if the control
takes place within that State or on the lands of that tribe,
respectively.
(6) Each calendar year, you must attempt to control depredation by
species listed under this depredation order using nonlethal methods
before you may use lethal control. Nonlethal control methods can include
such measures as netting and flagging, the use of trained raptors,
propane cannons, and recordings.
(c) Conditions under which control is allowed by Federal, State, and
Tribal employees. You do not need a Federal permit to control the
species listed in paragraph (a) of this section in the following
circumstances:
(1) Where they are causing serious injuries to agricultural or
horticultural crops or to livestock feed;
(2) When they cause a health hazard or structural property damage;
or
(3) To protect a species recognized by the Federal Government, a
State, or a Tribe as an endangered, threatened, or candidate, species,
or a species of special concern, including critical habitat for any
listed species.
[[Page 115]]
(4) Each calendar year, you must attempt to control depredation by
species listed under this depredation order using nonlethal methods
before you may use lethal control. Nonlethal control methods can include
such measures as netting and flagging, the use of trained raptors,
propane cannons, and recordings. However, this requirement does not
apply to Federal, State, or Tribal employees conducting brown-headed
cowbird trapping to protect a species recognized by the Federal
Government, a State, or a Tribe as endangered, threatened, candidate, or
of special concern.
(d) Ammunition. In most cases, if you use a firearm to kill
migratory birds under the provisions of this section, you must use
nontoxic shot or nontoxic bullets to do so. See Sec.20.21(j) of this
chapter for a listing of approved nontoxic shot types. However, this
prohibition does not apply if you use an air rifle or an air pistol for
control of depredating birds.
(e) Access to control efforts. If you exercise any of the privileges
granted by this section, you must allow any Federal, State, tribal, or
territorial wildlife law enforcement officer unrestricted access at all
reasonable times (including during actual operations) over the premises
on which you are conducting the control. You must furnish the officer
whatever information he or she may require about your control
operations.
(f) Trapping conditions. You must comply with the following
conditions if you attempt to trap any species under this order.
(1) You may possess, transport, and use a lure bird or birds of the
species listed in paragraph (a) that you wish to trap.
(2) You must check each trap at least once every day it is deployed.
(3) At temperatures above 80 [deg]Fahrenheit, the traps must provide
shade for captured birds.
(4) Each trap must contain adequate food and water.
(5) You must promptly release all healthy nontarget birds that you
capture.
(6) If a federally permitted wildlife rehabilitator is within 1 hour
or less of your capture efforts, you must send injured or debilitated
nontarget federally protected migratory birds to the rehabilitator. If
no rehabilitator is closer than 1 hour away, you may euthanize an
injured or debilitated bird of a nontarget species unless the species is
federally listed as an endangered, threatened, or candidate species, in
which case you must deliver it to a rehabilitator and report the take to
the nearest U.S. Fish and Wildlife Service Field Office or Special
Agent.
(7) You must report captures of nontarget federally protected
migratory birds in your annual report (see paragraph (i) of this
section).
(g) Euthanasia. Captured birds and wounded or injured birds of the
species listed in paragraph (a) may only be killed by carbon monoxide or
carbon dioxide inhalation, or by cervical dislocation performed by well-
trained personnel who are regularly monitored to ensure proficiency.
(h) Disposition of birds and parts. You may not sell, or offer to
sell, any bird, or any part thereof, killed under this section, but you
may possess, transport, and otherwise dispose of the bird or its parts,
including transferring them to authorized research or educational
institutions. If not transferred, the bird and its parts must either be
burned, or buried at least 1 mile from the nesting area of any migratory
bird species recognized by the Federal Government, the State, or a Tribe
as an endangered or threatened species.
(i) Annual report. Any person, business, organization, or government
official acting under this depredation order must provide an annual
report using FWS Form 3-202-21-2143 to the appropriate Regional
Migratory Bird Permit Office. The addresses for the Regional Migratory
Bird Permit Offices are provided at 50 CFR 2.2, and are on the form. The
report is due by January 31st of the following year and must include the
information requested on the form.
(j) Compliance with other laws. You may trap and kill birds under
this order only in a way that complies with all State, tribal, or
territorial laws or regulations. You must have any State, tribal, or
territorial permit required to conduct the activity.
[[Page 116]]
(k) Information collection. The Office of Management and Budget has
approved the information collection requirements associated with this
depredation order and assigned OMB Control No. 1018-0146. We may not
conduct or sponsor and you are not required to respond to a collection
of information unless it displays a currently valid OMB control number.
You may send comments on the information collection requirements to the
Service's Information Collection Clearance Officer at the address
provided at 50 CFR 2.1(b).
[79 FR 65601, Nov. 5, 2014]
Sec.21.44 Depredation order for horned larks, house finches,
and white-crowned sparrows in California.
Horned larks (Eremophila alpestris), house finches (Carpodacus
mexicanus), and white-crowned sparrows (Zonotrichia leucophrys) may be
taken in Fresno, Merced, Napa, and Sonoma Counties in California if they
are depredating on agricultural or horticultural crops. Take of birds
under this order must be done under the supervision of the county
agriculture commissioner. You do not need a Federal permit for this
depredation control as long as you meet the conditions below, but a
depredation permit (see Sec.21.41 in this subpart) is required for
take of other migratory bird species, or for take of horned larks or
white-crowned sparrows from May 1 through October 31.
(a) When is take allowed under this depredation order?
(1) Horned larks and white-crowned sparrows may be controlled from
November 1 through April 30.
(2) House finches may be controlled at any time.
(b) Use of nonlethal control. Each season, before lethal control may
be undertaken, the landowner must attempt to use nonlethal control of
migratory bird depredation as recommended by the U.S. Department of
Agriculture, Animal and Plant Health Inspection Service, Wildlife
Services. The county agriculture commissioner must confirm that
nonlethal measures have been undertaken to control or eliminate the
problem prior to the landowner using lethal control.
(c) Ammunition. Except when using an air rifle or an air pistol, if
firearms are used to kill migratory birds under the provisions of this
regulation, the shooter must use nontoxic shot or nontoxic bullets to do
so. See Sec.20.21(j) of this chapter for a listing of approved
nontoxic shot types.
(d) Disposition of carcasses. Specimens useful for scientific
purposes may be transferred to any entity authorized to possess them. If
not transferred, all carcasses of birds killed under this order must be
buried or otherwise destroyed. None of the above migratory birds killed,
or the parts thereof, or the plumage of such birds, may be sold or
removed from the area where killed.
(e) Annual report. Any county official acting under this depredation
order must provide an annual report to the Regional Migratory Bird
Permit Office using FWS Form 3-202-20-2144. The address for the Regional
Migratory Bird Permit Office is in Sec.2.2 of subchapter A of this
chapter, and is on the form. The report is due by January 31st of the
year after control activities are undertaken.
[78 FR 65581, Nov. 1, 2013]
Sec.21.45 [Reserved]
Sec.21.46 Depredation order for depredating California scrub jays
and Steller's jays in Washington and Oregon.
Landowners, sharecroppers, tenants, or their employees or agents
actually engaged in the production of nut crops in Washington and Oregon
may, without a permit, take California scrub jays (Aphelocoma
californica) and Steller's jays (Cyanocitta stelleri) when found
committing or about to commit serious depredations to nut crops on the
premises owned or occupied by such persons: Provided:
(a) That California scrub jays and Steller's jays may only be taken
pursuant to this section between August 1 and December 1 in any year, in
the Washington counties of Clark, Cowlitz, and Lewis; and the Oregon
counties of Benton, Clackamas, Lane, Linn, Marion, Multnomah, Polk,
Washington, and Yamhill.
(b) That California scrub jays and Steller's jays taken pursuant to
this
[[Page 117]]
section shall not be transported or sold or offered for sale except
that, such transportation within the area, as may be necessary to bury
or otherwise destroy the carcasses of such birds is permitted: Provided,
That the Director of the State agricultural department, college, or
other public institution may requisition such California scrub jays and
Steller's jays killed as may be needed for scientific investigations.
(c) That such birds may be taken only by trapping or shooting and on
areas where serious depredations are being or are about to be committed.
(d) That any person exercising any of the privileges granted by this
section shall permit at all reasonable times, including during actual
operations, any Federal or State game or deputy game agent, warden,
protector, or other law enforcement officer free and unrestricted access
over the premises on which such operations have been or are being
conducted; and shall furnish promptly to such officer whatever
information he may require, concerning said operations.
(e) That nothing in this section shall be construed to authorize the
killing of such migratory birds contrary to any State laws or
regulations; and that none of the privileges granted under this section
shall be exercised unless the person possesses whatever permit as may be
required for such activities by the States of Washington and Oregon.
(f) That any person authorized by this section to act under this
depredation order must provide an annual report of take during the
calendar year for each species by January 31st of the following year.
The report must include the number of birds taken for each species,
method of take, month(s) in which they were taken, county(ies) and
State(s) in which they were taken, purpose of take, and disposition.
Submit annual reports to the Pacific Region Migratory Bird Permit Office
in Portland, Oregon, at the address shown at 50 CFR 2.2.
[39 FR 31326, Aug. 28, 1974, as amended at 84 FR 45924, Sept. 3, 2019]
Sec. Sec.21.47-21.48 [Reserved]
Sec.21.49 Control order for resident Canada geese at airports
and military airfields.
(a) Which Canada geese are covered by this order? This regulation
addresses the control and management of resident Canada geese, as
defined in Sec.21.3.
(b) What is the control order for resident Canada geese at airports,
and what is its purpose? The airport control order authorizes managers
at commercial, public, and private airports (airports) (and their
employees or their agents) and military air operation facilities
(military airfields) (and their employees or their agents) to establish
and implement a control and management program when necessary to resolve
or prevent threats to public safety from resident Canada geese. Control
and management activities include indirect and/or direct control
strategies such as trapping and relocation, nest and egg destruction,
gosling and adult trapping and culling programs, or other lethal and
non-lethal control strategies.
(c) Who may participate in the program? To be designated as an
airport that is authorized to participate in this program, an airport
must be part of the National Plan of Integrated Airport Systems and have
received Federal grant-in-aid assistance, or a military airfield,
meaning an airfield or air station that is under the jurisdiction,
custody, or control of the Secretary of a military department. Only
airports and military airfields in the lower 48 States and the District
of Columbia are eligible to conduct and implement the various resident
Canada goose control and management program components.
(d) What are the restrictions of the control order for resident
Canada geese at airports and military airfields? The airport control
order for resident Canada geese is subject to the following
restrictions:
(1) Airports and military airfields should use nonlethal goose
management tools to the extent they deem appropriate. To minimize lethal
take, airports and military airfields should follow this procedure:
(i) Assess the problem to determine its extent or magnitude, its
impact on
[[Page 118]]
current operations, and the appropriate control method to be used.
(ii) Base control methods on sound biological, environmental,
social, and cultural factors.
(iii) Formulate appropriate methods into a control strategy that
uses several control techniques rather than relying on a single method.
(iv) Implement all appropriate nonlethal management techniques (such
as harassment and habitat modification) in conjunction with take
authorized under this order.
(2)(i) Methods of take for the control of resident Canada geese are
at the airport's and military airfield's discretion from among the
following:
(A) Egg oiling,
(B) Egg and nest destruction,
(C) Shooting,
(D) Lethal and live traps,
(E) Nets,
(F) Registered animal drugs, pesticides, and repellants,
(G) Cervical dislocation, and
(H) CO2 asphyxiation.
(ii) Birds caught live may be euthanized or transported and
relocated to another site approved by the State or Tribal wildlife
agency, if required.
(iii) All techniques used must be in accordance with other Federal,
State, and local laws, and their use must comply with any labeling
restrictions.
(iv) Persons using shotguns must use nontoxic shot, as listed in
Sec.20.21(j) of this subchapter.
(v) Persons using egg oiling must use 100 percent corn oil, a
substance exempted from regulation by the U.S. Environmental Protection
Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.
(3) Airports and military airfields may conduct management and
control activities, involving the take of resident Canada geese, under
this section between April 1 and September 15. The destruction of
resident Canada goose nests and eggs may take place at any time of year.
(4) Airports and military airfields and their employees and agents
may possess, transport, and otherwise dispose of resident Canada geese
taken under this section. Disposal of birds taken under this order may
be by donation to public museums or public institutions for scientific
or educational purposes, processing for human consumption and subsequent
distribution free of charge to charitable organizations, or burial or
incineration. Airports/military airfields, their employees, and
designated agents may not sell, offer for sale, barter, or ship for the
purpose of sale or barter any resident Canada geese taken under this
section, nor their plumage or eggs. Any specimens needed for scientific
purposes as determined by the Regional Director must not be destroyed,
and information on birds carrying metal leg bands must be submitted to
the Bird Banding Laboratory by means of a toll-free telephone number at
1-800-327-BAND (or 2263).
(5) Resident Canada geese may be taken only within the airport, or
the military base on which a military airfield is located, or within a
3-mile radius of the outer boundary of such a facility. Airports and
military airfields or their agents must first obtain all necessary
authorizations from landowners for all management activities conducted
outside the airport or military airfield's boundaries and be in
compliance with all State and local laws and regulations.
(6) Nothing in this section authorizes the killing of resident
Canada geese or destruction of their nests and eggs contrary to the laws
or regulations of any State or Tribe, and none of the privileges of this
section may be exercised unless the airport or military airfield
possesses the appropriate State or Tribal authorization or other permits
required by the State or Tribe. Moreover, this section does not
authorize the killing of any migratory bird species or destruction of
their nest or eggs other than resident Canada geese.
(7) Authorized airports and military airfields, and their employees
and agents operating under the provisions of this section may not use
decoys, calls, or other devices to lure birds within gun range.
(8) Airports and military airfields exercising the privileges
granted by this section must submit an annual report summarizing
activities, including the date and numbers and location of birds, nests,
and eggs taken, by December 31
[[Page 119]]
of each year to the Regional Migratory Bird Permit Office listed in
Sec.2.2 of this subchapter.
(9) Nothing in this section applies to any Federal land without
written permission of the Federal agency with jurisdiction.
(10) Airports and military airfields may not undertake any actions
under this section if the activities adversely affect other migratory
birds or species designated as endangered or threatened under the
authority of the Endangered Species Act. Persons operating under this
order must immediately report the take of any species protected under
the Endangered Species Act to the Service. Further, to protect certain
species from being adversely affected by management actions, airports
and military airfields must:
(i) Follow the Federal-State Contingency Plan for the whooping
crane;
(ii) Conduct no activities within 300 meters of a whooping crane or
Mississippi sandhill crane nest;
(iii) Follow all Regional (or National when available) Bald Eagle
Nesting Management guidelines for all management activities;
(iv) Contact the Arizona Ecological Services Office (for the
Colorado River and Arizona sites) or the Carlsbad Fish and Wildlife
Office (for Salton Sea sites) if control activities are proposed in or
around occupied habitats (cattail or cattail bulrush marshes) to discuss
the proposed activity and ensure that implementation will not adversely
affect clapper rails or their habitats; and
(v) In California, any control activities of resident Canada geese
in areas used by the following species listed under the Endangered
Species Act must be done in coordination with the appropriate local FWS
field office and in accordance with standard local operating procedures
for avoiding adverse effects to the species or its critical habitat:
(A) Birds: Light-footed clapper rail, California clapper rail, Yuma
clapper rail, California least tern, southwestern willow flycatcher,
least Bell's vireo, western snowy plover, California gnatcatcher.
(B) Amphibians: California red-legged frog and California tiger
salamander.
(C) Insects: Valley elderberry longhorn beetle and delta green
ground beetle.
(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp,
longhorn fairy shrimp, vernal pool tadpole shrimp, San Diego fairy
shrimp, and Riverside fairy shrimp.
(E) Plants: Butte County meadowfoam, large-flowered wooly
meadowfoam, Cook's lomatium, Contra Costa goldfields, Hoover's spurge,
fleshy owl's clover, Colusa grass, hairy Orcutt grass, Solano grass,
Greene's tuctoria, Sacramento Valley Orcutt grass, San Joaquin Valley
Orcutt grass, slender Orcutt grass, California Orcutt grass, spreading
navarretia, and San Jacinto Valley crownscale.
(e) Can the control order be suspended? We reserve the right to
suspend or revoke an airport's or military airfield's authority under
this control order if we find that the terms and conditions specified in
the control order have not been adhered to by that airport or military
airfield. Final decisions to revoke authority will be made by the
appropriate Regional Director. The criteria and procedures for
suspension, revocation, reconsideration, and appeal are outlined in
Sec. Sec.13.27 through 13.29 of this subchapter. For the purposes of
this section, ``issuing officer'' means the Regional Director and
``permit'' means the authority to act under this control order. For
purposes of Sec.13.29(e), appeals must be made to the Director.
(f) Has the Office of Management and Budget (OMB) approved the
information collection requirements of the control order? OMB has
approved the information collection and recordkeeping requirements of
the control order under OMB control number 1018-0133. We may not conduct
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number. You
may send comments on the information collection and recordkeeping
requirements to the Service's Information Collection Clearance Officer
at the address provided at 50 CFR 2.1(b).
[71 FR 45986, Aug. 10, 2006, as amended at 72 FR 46408, Aug. 20, 2007;
79 FR 43966, July 29, 2014; 84 FR 28773, June 20, 2019]
[[Page 120]]
Sec.21.50 Depredation order for resident Canada geese nests and eggs.
(a) Which Canada geese are covered by this order? This regulation
addresses the control and management of resident Canada geese, as
defined in Sec.21.3.
(b) What is the depredation order for resident Canada geese nests
and eggs, and what is its purpose? The nest and egg depredation order
for resident Canada geese authorizes private landowners and managers of
public lands (landowners); homeowners' associations; and village, town,
municipality, and county governments (local governments); and the
employees or agents of any of these persons or entities to destroy
resident Canada goose nests and eggs on property under their
jurisdiction when necessary to resolve or prevent injury to people,
property, agricultural crops, or other interests.
(c) Who may participate in the depredation order? Only landowners,
homeowners' associations, and local governments (and their employees or
their agents) in the lower 48 States and the District of Columbia are
eligible to implement the resident Canada goose nest and egg depredation
order.
(d) What are the restrictions of the depredation order for resident
Canada goose nests and eggs? The resident Canada goose nest and egg
depredation order is subject to the following restrictions:
(1) Before any management actions can be taken, landowners,
homeowners' associations, and local governments must register with the
Service at https://epermits.fws.gov/eRCGR. Landowners, homeowners'
associations, and local governments (collectively termed
``registrants'') must also register each employee or agent working on
their behalf. Once registered, registrants and agents will be authorized
to act under the depredation order.
(2) Registrants authorized to operate under the depredation order
must use nonlethal goose management techniques to the extent they deem
appropriate in an effort to minimize take.
(3) Methods of nest and egg destruction or take are at the
registrant's discretion from among the following:
(i) Egg oiling, using 100 percent corn oil, a substance exempted
from regulation by the U.S. Environmental Protection Agency under the
Federal Insecticide, Fungicide, and Rodenticide Act, and
(ii) Egg and nest destruction, including but not limited to the
removal and disposal of eggs and nest material.
(4) Registrants may conduct resident Canada goose nest and egg
destruction activities at any time of year. Homeowners' associations and
local governments or their agents must obtain landowner consent prior to
destroying nests and eggs on private property within the homeowners'
association or local government's jurisdiction and be in compliance with
all State and local laws and regulations.
(5) Registrants authorized to operate under the depredation order
may possess, transport, and dispose of resident Canada goose nests and
eggs taken under this section. Registrants authorized to operate under
the program may not sell, offer for sale, barter, or ship for the
purpose of sale or barter any resident Canada goose nest or egg taken
under this section.
(6) Registrants exercising the privileges granted by this section
must submit an annual report summarizing activities, including the date,
numbers, and location of nests and eggs taken by October 31 of each year
at https://epermits.fws.gov/eRCGR before any subsequent registration for
the following year.
(7) Nothing in this section authorizes the destruction of resident
Canada goose nests or the take of resident Canada goose eggs contrary to
the laws or regulations of any State or Tribe, and none of the
privileges of this section may be exercised unless the registrant is
authorized to operate under the program and possesses the appropriate
State or Tribal permits, when required. Moreover, this section does not
authorize the killing of any migratory bird species or destruction of
their nest or eggs other than resident Canada geese.
(8) Registrants may not undertake any actions under this section if
the activities adversely affect species designated as endangered or
threatened under the authority of the Endangered Species Act. Persons
operating under this order must immediately report the take of any
species protected under the Endangered Species Act to the Service.
Further, to protect certain species
[[Page 121]]
from being adversely affected by management actions, registrants must:
(i) Follow the Federal-State Contingency Plan for the whooping
crane;
(ii) Conduct no activities within 300 meters of a whooping crane or
Mississippi sandhill crane nest;
(iii) Follow all Regional (or National when available) Bald Eagle
Nesting Management guidelines for all management activities;
(iv) Contact the Arizona Ecological Services Office (for the
Colorado River and Arizona sites) or the Carlsbad Fish and Wildlife
Office (for Salton Sea sites) if control activities are proposed in or
around occupied habitats (cattail or cattail bulrush marshes) to discuss
the proposed activity and ensure that implementation will not adversely
affect clapper rails or their habitats; and
(v) In California, any control activities of resident Canada geese
in areas used by the following species listed under the Endangered
Species Act must be done in coordination with the appropriate local FWS
field office and in accordance with standard local operating procedures
for avoiding adverse effects to the species or its critical habitat:
(A) Birds: Light-footed clapper rail, California clapper rail, Yuma
clapper rail, California least tern, southwestern willow flycatcher,
least Bell's vireo, western snowy plover, California gnatcatcher.
(B) Amphibians: California red-legged frog and California tiger
salamander.
(C) Insects: Valley elderberry longhorn beetle and delta green
ground beetle.
(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp,
longhorn fairy shrimp, vernal pool tadpole shrimp, San Diego fairy
shrimp, and Riverside fairy shrimp.
(E) Plants: Butte County meadowfoam, large-flowered wooly
meadowfoam, Cook's lomatium, Contra Costa goldfields, Hoover's spurge,
fleshy owl's clover, Colusa grass, hairy Orcutt grass, Solano grass,
Greene's tuctoria, Sacramento Valley Orcutt grass, San Joaquin Valley
Orcutt grass, slender Orcutt grass, California Orcutt grass, spreading
navarretia, and San Jacinto Valley crownscale.
(e) Can the depredation order be suspended? We reserve the right to
suspend or revoke this authorization for a particular landowner,
homeowners' association, or local government if we find that the
registrant has not adhered to the terms and conditions specified in the
depredation order. Final decisions to revoke authority will be made by
the appropriate Regional Director. The criteria and procedures for
suspension, revocation, reconsideration, and appeal are outlined in
Sec. Sec.13.27 through 13.29 of this subchapter. For the purposes of
this section, ``issuing officer'' means the Regional Director and
``permit'' means the authority to act under this depredation order. For
purposes of Sec.13.29(e), appeals must be made to the Director.
Additionally, at such time that we determine that resident Canada goose
populations no longer need to be reduced in order to resolve or prevent
injury to people, property, agricultural crops, or other interests, we
may choose to terminate part or all of the depredation order by
subsequent regulation. In all cases, we will annually review the
necessity and effectiveness of the depredation order.
(f) Has the Office of Management and Budget (OMB) approved the
information collection requirements of the depredation order? OMB has
approved the information collection and recordkeeping requirements of
the depredation order under OMB control number 1018-0133. We may not
conduct or sponsor, and you are not required to respond to, a collection
of information unless it displays a currently valid OMB control number.
You may send comments on the information collection and recordkeeping
requirements to the Service's Information Collection Clearance Officer
at the address provided at 50 CFR 2.1(b).
[71 FR 45988, Aug. 10, 2006, as amended at 72 FR 46408, Aug. 20, 2007;
79 FR 43966, July 29, 2014; 84 FR 28773, June 20, 2019]
Sec.21.51 Depredation order for resident Canada geese at agricultural
facilities.
(a) Which Canada geese are covered by this order? This regulation
addresses the control and management of resident Canada geese, as
defined in Sec.21.3.
[[Page 122]]
(b) What is the depredation order for resident Canada geese at
agricultural facilities, and what is its purpose? The depredation order
for resident Canada geese at agricultural facilities authorizes States
and Tribes, via the State or Tribal wildlife agency, to implement a
program to allow landowners, operators, and tenants actively engaged in
commercial agriculture (agricultural producers) (or their employees or
agents) to conduct direct damage management actions such as nest and egg
destruction, gosling and adult trapping and culling programs, or other
lethal and non-lethal wildlife-damage management strategies on resident
Canada geese when the geese are committing depredations to agricultural
crops and when necessary to resolve or prevent injury to agricultural
crops or other agricultural interests from resident Canada geese.
(c) Who may participate in the depredation order? State and Tribal
wildlife agencies in the following States may authorize agricultural
producers (or their employees or agents) to conduct and implement
various components of the depredation order at agricultural facilities
in the Atlantic, Central, and Mississippi Flyway portions of these
States: Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York,
North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Vermont,
Virginia, West Virginia, Wisconsin, and Wyoming.
(d) What are the restrictions of the depredation order for resident
Canada geese at agricultural facilities? The depredation order for
resident Canada geese at agricultural facilities is subject to the
following restrictions:
(1) Only landowners, operators, and tenants (or their employees or
agents) actively engaged in commercial activities (agricultural
producers) so designated by the States may act under this order.
(2) Authorized agricultural producers should use nonlethal goose
management tools to the extent they deem appropriate. To minimize lethal
take, agricultural producers should adhere to the following procedure:
(i) Assess the problem to determine its extent or magnitude, its
impact to current operations, and the appropriate control method to be
used.
(ii) Base control methods on sound biological, environmental,
social, and cultural factors.
(iii) Formulate appropriate methods into a control strategy that
uses the approach/concept that encourages the use of several control
techniques rather than relying on a single method.
(iv) Implement all appropriate nonlethal management techniques (such
as harassment and habitat modification) in conjunction with take
authorized under this order.
(3)(i) Methods of take for the control of resident Canada geese are
at the State's or Tribe's discretion among the following:
(A) Egg oiling,
(B) Egg and nest destruction,
(C) Shotguns,
(D) Lethal and live traps,
(E) Nets,
(F) Registered animal drugs, pesticides, and repellants,
(G) Cervical dislocation, and
(H) CO2 asphyxiation.
(ii) Birds caught live may be euthanized or transported and
relocated to another site approved by the State or Tribal wildlife
agency, if required.
(iii) All techniques used must be in accordance with other Federal,
State, Tribal, and local laws, and their use must comply with any
labeling restrictions.
(iv) Persons using shotguns must use nontoxic shot, as listed in
Sec.20.21(j) of this subchapter.
(v) Persons using egg oiling must use 100 percent corn oil, a
substance exempted from regulation by the U.S. Environmental Protection
Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.
(4) Under this section, authorized agricultural producers and their
employees and agents may:
(i) Conduct management and control activities, involving the take of
resident Canada geese, as follows:
[[Page 123]]
------------------------------------------------------------------------
Where When
------------------------------------------------------------------------
In the Atlantic Flyway States of Connecticut, Between April 1 and
Delaware, Florida, Georgia, Maine, Maryland, August 31.
Massachusetts, New Hampshire, New Jersey, New
York, North Carolina, Pennsylvania, Rhode
Island, South Carolina, Vermont, Virginia, and
West Virginia.
In the Mississippi and Central Flyway portions Between May 1 and
of these States: Alabama, Arkansas, Colorado, August 31.
Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, New Mexico, North
Dakota, Ohio, Oklahoma, South Dakota,
Tennessee, Texas, Wisconsin, and Wyoming.
------------------------------------------------------------------------
(ii) Destroy the nests and eggs of resident Canada geese at any time
of year.
(5) Authorized agricultural producers and their employees and agents
may possess, transport, and otherwise dispose of resident Canada geese
taken under this section. Disposal of birds taken under this order may
be by donation to public museums or public institutions for scientific
or educational purposes, processing for human consumption and subsequent
distribution free of charge to charitable organizations, or burial or
incineration. Agricultural producers, their employees, and designated
agents may not sell, offer for sale, barter, or ship for the purpose of
sale or barter any resident Canada geese taken under this section, nor
their plumage or eggs. Any specimens needed for scientific purposes as
determined by the Director must not be destroyed, and information on
birds carrying metal leg bands must be submitted to the Bird Banding
Laboratory by means of a toll-free telephone number at 1-800-327-BAND
(or 2263).
(6) Resident Canada geese may be taken only on land which an
authorized agricultural producer personally controls and where geese are
committing depredations to agricultural crops.
(7) Authorized agricultural producers, and their employees and
agents, operating under the provisions of this section may not use
decoys, calls, or other devices to lure birds within gun range.
(8) Any authorized agricultural producer exercising the privileges
of this section must keep and maintain a log that indicates the date and
number of birds killed and the date and number of nests and eggs taken
under this authorization. The log must be maintained for a period of 3
years (and records for 3 previous years of takings must be maintained at
all times thereafter). The log and any related records must be made
available to Federal, State, or Tribal wildlife enforcement officers
upon request during normal business hours.
(9) Nothing in this section authorizes the killing of resident
Canada geese or the destruction of their nests and eggs contrary to the
laws or regulations of any State or Tribe, and none of the privileges of
this section may be exercised unless the agricultural producer possesses
the appropriate State or Tribal permits, when required. Moreover, this
regulation does not authorize the killing of any migratory bird species
or destruction of their nests or eggs other than resident Canada geese.
(10) States and Tribes exercising the privileges granted by this
section must submit an annual report summarizing activities, including
the numbers and County of birds, nests, and eggs taken, by December 31
of each year to the Regional Migratory Bird Permit Office listed in
Sec.2.2 of this subchapter.
(11) Nothing in this section applies to any Federal land without
written permission of the Federal agency with jurisdiction.
(12) Authorized agricultural producers may not undertake any actions
under this section if the activities adversely affect other migratory
birds or species designated as endangered or threatened under the
authority of the Endangered Species Act. Persons operating under this
order must immediately report the take of any species protected under
the Endangered Species Act to the Service. Further, to protect certain
species from being adversely affected by management actions,
agricultural producers must:
(i) Follow the Federal-State Contingency Plan for the whooping
crane;
(ii) Conduct no activities within 300 meters of a whooping crane or
Mississippi sandhill crane nest; and
(iii) Follow all Regional (or National when available) Bald Eagle
Nesting
[[Page 124]]
Management guidelines for all management activities.
(e) Can the depredation order be suspended? We reserve the right to
suspend or revoke a State, Tribal, or agricultural producer's authority
under this program if we find that the terms and conditions specified in
the depredation order have not been adhered to by that State or Tribe.
Final decisions to revoke authority will be made by the appropriate
Regional Director. The criteria and procedures for suspension,
revocation, reconsideration, and appeal are outlined in Sec. Sec.13.27
through 13.29 of this subchapter. For the purposes of this section,
``issuing officer'' means the Regional Director and ``permit'' means the
authority to act under this depredation order. For purposes of Sec.
13.29(e), appeals must be made to the Director. Additionally, at such
time that we determine that resident Canada geese populations no longer
pose a threat to agricultural crops or no longer need to be reduced in
order to resolve or prevent injury to agricultural crops or other
agricultural interests, we may choose to terminate part or all of the
depredation order by subsequent regulation. In all cases, we will
annually review the necessity and effectiveness of the depredation
order.
(f) Has the Office of Management and Budget (OMB) approved the
information collection requirements of the depredation order? OMB has
approved the information collection and recordkeeping requirements of
the depredation order under OMB control number 1018-0133. We may not
conduct or sponsor, and you are not required to respond to, a collection
of information unless it displays a currently valid OMB control number.
You may send comments on the information collection and recordkeeping
requirements to the Service's Information Collection Clearance Officer
at the address provided at 50 CFR 2.1(b).
[71 FR 45989, Aug. 10, 2006, as amended at 79 FR 43966, July 29, 2014;
84 FR 28773, June 20, 2019; 85 FR 10623, Feb. 25, 2020]
Sec.21.52 Public health control order for resident Canada geese.
(a) Which Canada geese are covered by this order? This regulation
addresses the control and management of resident Canada geese, as
defined in Sec.21.3.
(b) What is the public health control order for resident Canada
geese, and what is its purpose? The public health control order for
resident Canada geese authorizes States, Tribes, and the District of
Columbia, via the State or Tribal wildlife agency, to conduct resident
Canada goose control and management activities including direct control
strategies such as trapping and relocation, nest and egg destruction,
gosling and adult trapping and culling programs, or other lethal and
non-lethal wildlife damage-management strategies when resident Canada
geese are posing a direct threat to human health.
(c) What is a direct threat to human health? A direct threat to
human health is one where a Federal, State, Tribal, or local public
health agency has determined that resident Canada geese pose a specific,
immediate human health threat by creating conditions conducive to the
transmission of human or zoonotic pathogens. The State or Tribe may not
use this control order for situations in which resident Canada geese are
merely causing a nuisance.
(d) Who may participate in the program? Only State and Tribal
wildlife agencies in the lower 48 States and the District of Columbia
(or their employees or agents) may conduct and implement the various
components of the public health control order for resident Canada geese.
(e) What are the restrictions of the public health depredation order
for resident Canada geese? The public health control order for resident
Canada geese is subject to the following restrictions:
(1) Authorized State and Tribal wildlife agencies should use
nonlethal goose management tools to the extent they deem appropriate.
(2)(i) Methods of take for the control of resident Canada geese are
at the State's and Tribe's discretion from among the following:
(A) Egg oiling,
(B) Egg and nest destruction,
(C) Shotguns,
(D) Lethal and live traps,
(E) Nets,
(F) Registered animal drugs, pesticides, and repellants,
[[Page 125]]
(G) Cervical dislocation, and
(H) CO2 asphyxiation.
(ii) Birds caught live may be euthanized or transported and
relocated to another site approved by the State or Tribal wildlife
agency, if required.
(iii) All techniques used must be in accordance with other Federal,
State, Tribal, and local laws, and their use must comply with any
labeling restrictions.
(iv) Persons using shotguns must use nontoxic shot, as listed in
Sec.20.21(j) of this subchapter.
(v) Persons using egg oiling must use 100 percent corn oil, a
substance exempted from regulation by the U.S. Environmental Protection
Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.
(3) Authorized State and Tribal wildlife agencies and their
employees and agents may conduct management and control activities,
involving the take of resident Canada geese, under this section between
April 1 and August 31. The destruction of resident Canada goose nests
and eggs may take place at any time of year.
(4) Authorized State and Tribal wildlife agencies and their
employees and agents may possess, transport, and otherwise dispose of
resident Canada geese taken under this section. Disposal of birds taken
under this order may be by donation to public museums or public
institutions for scientific or educational purposes, processing for
human consumption and subsequent distribution free of charge to
charitable organizations, or burial or incineration. States, their
employees, and designated agents may not sell, offer for sale, barter,
or ship for the purpose of sale or barter any resident Canada geese
taken under this section, nor their plumage or eggs. Any specimens
needed for scientific purposes as determined by the Regional Director
must not be destroyed, and information on birds carrying metal leg bands
must be submitted to the Bird Banding Laboratory by means of a toll-free
telephone number at 1-800-327-BAND (or 2263).
(5) Resident Canada geese may be taken only within the specified
area of the direct threat to human health.
(6) Authorized State and Tribal wildlife agencies, and their
employees and agents operating under the provisions of this section may
not use decoys, calls, or other devices to lure birds within gun range.
(7) No person conducting activities under this section should
construe the program as authorizing the killing of resident Canada geese
or destruction of their nests and eggs contrary to any State law or
regulation, nor may any control activities be conducted on any Federal
land without specific authorization by the responsible management
agency. No person may exercise the privileges granted under this section
unless they possess any permits required for such activities by any
State or Federal land manager.
(8) Any State or Tribal employee or designated agent authorized to
carry out activities under this section must have a copy of the State's
or Tribal authorization and designation in their possession when
carrying out any activities. If the State or Tribe is conducting
operations on private property, the State or Tribe must also require the
property owner or occupant on whose premises resident Canada goose
activities are being conducted to allow, at all reasonable times,
including during actual operations, free and unrestricted access to any
Service special agent or refuge officer, State or Tribal wildlife or
deputy wildlife agent, warden, protector, or other wildlife law
enforcement officer on the premises where they are, or were, conducting
activities. Furthermore, any State or Tribal employee or designated
agent conducting such activities must promptly furnish whatever
information is required concerning such activities to any such wildlife
officer.
(9) States and Tribes exercising the privileges granted by this
section must submit an annual report summarizing activities, including
the numbers and County of birds taken, by December 31 of each year to
the Regional Migratory Bird Permit Office listed in Sec.2.2 of this
subchapter.
(10) Authorized State and Tribal wildlife agencies may not undertake
any actions under this section if the
[[Page 126]]
activities adversely affect other migratory birds or species designated
as endangered or threatened under the authority of the Endangered
Species Act. Persons operating under this order must immediately report
the take of any species protected under the Endangered Species Act to
the Service. Further, to protect certain species from being adversely
affected by management actions, State and Tribal wildlife agencies must:
(i) Follow the Federal-State Contingency Plan for the whooping
crane;
(ii) Conduct no activities within 300 meters of a whooping crane or
Mississippi sandhill crane nest;
(iii) Follow all Regional (or National when available) Bald Eagle
Nesting Management guidelines for all management activities;
(iv) Contact the Arizona Fish and Wildlife Service Ecological
Services Office (for the Colorado River and Arizona sites) or the
Carlsbad Fish and Wildlife Office (for Salton Sea sites) if control
activities are proposed in or around occupied habitats (cattail or
cattail bulrush marshes) to discuss the proposed activity and ensure
that implementation will not adversely affect clapper rails or their
habitats; and
(v) In California, any control activities of resident Canada geese
in areas used by the following species listed under the Endangered
Species Act must be done in coordination with the appropriate local FWS
field office and in accordance with standard local operating procedures
for avoiding adverse effects to the species or its critical habitat:
(A) Birds: Light-footed clapper rail, California clapper rail, Yuma
clapper rail, California least tern, southwestern willow flycatcher,
least Bell's vireo, western snowy plover, California gnatcatcher.
(B) Amphibians: California red-legged frog and California tiger
salamander.
(C) Insects: Valley elderberry longhorn beetle and delta green
ground beetle.
(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp,
longhorn fairy shrimp, vernal pool tadpole shrimp, San Diego fairy
shrimp, and Riverside fairy shrimp.
(E) Plants: Butte County meadowfoam, large-flowered wooly
meadowfoam, Cook's lomatium, Contra Costa goldfields, Hoover's spurge,
fleshy owl's clover, Colusa grass, hairy Orcutt grass, Solano grass,
Greene's tuctoria, Sacramento Valley Orcutt grass, San Joaquin Valley
Orcutt grass, slender Orcutt grass, California Orcutt grass, spreading
navarretia, and San Jacinto Valley crownscale.
(f) Can the control order be suspended? We reserve the right to
suspend or revoke a State's or Tribe's authority under this program if
we find that the terms and conditions specified in the depredation order
have not been adhered to by that agency. Final decisions to revoke
authority will be made by the appropriate Regional Director. The
criteria and procedures for suspension, revocation, reconsideration, and
appeal are outlined in Sec. Sec.13.27 through 13.29 of this
subchapter. For the purposes of this section, ``issuing officer'' means
the Regional Director and ``permit'' means the authority to act under
this control order. For purposes of Sec.13.29(e), appeals must be made
to the Director. Additionally, at such time that we determine that
resident Canada geese populations no longer pose direct threats to human
health, we may choose to terminate part or all of the control order by
subsequent regulation. In all cases, we will annually review the
necessity and effectiveness of the control order.
(g) Has the Office of Management and Budget (OMB) approved the
information collection requirements of the control order? OMB has
approved the information collection and recordkeeping requirements of
the control order under OMB control number 1018-0133. We may not conduct
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number. You
may send comments on the information collection and recordkeeping
requirements to the Service's Information Collection Clearance Officer
at the address provided at 50 CFR 2.1(b).
[71 FR 45990, Aug. 10, 2006, as amended at 79 FR 43966, July 29, 2014;
84 FR 28773, June 20, 2019]
[[Page 127]]
Sec.21.53 Control order for purple swamphens.
(a) Control of purple swamphens. Federal, State, Tribal, and local
wildlife management agencies, and their tenants, employees, or agents
may remove or destroy purple swamphens (Porphyrio porphyrio) or their
nests or eggs at any time when they find them anywhere in the contiguous
United States, Hawaii, Alaska, the Commonwealth of Puerto Rico, or the
U.S. Virgin Islands. Any authorized agency personnel may temporarily
possess, transport, and dispose of purple swamphens, subject to the
restrictions in paragraph (c) of this section. No permit is necessary to
engage in these actions.
(b) Disposal of purple swamphens. If you are authorized to control
purple swamphens, you may dispose of purple swamphens by the following
methods: You may donate purple swamphens taken under this order to
public museums or public institutions for scientific or educational
purposes; you may dispose of the carcasses by burial or incineration;
or, if the carcasses are not readily retrievable, you may leave them in
place. No one may retain for personal use, offer for sale, or sell a
purple swamphen removed under this section.
(c) Other provisions. (1) You may not remove or destroy purple
swamphens or their nests or eggs if doing so is contrary to any State,
territorial, tribal, or local laws or regulations.
(2) You may not remove or destroy purple swamphens or their nests or
eggs if doing so will adversely affect other migratory birds or species
designated as endangered or threatened under the authority of the
Endangered Species Act. In particular, the purple swamphen resembles the
native purple gallinule (Porphyrula martinica). Authorized persons must
take special care not to take purple gallinules or their nests or eggs
when conducting purple swamphen control activities.
(3) If you use firearms to control purple swamphens under this
regulation, you may use only nontoxic shot or nontoxic bullets for the
control.
(4) If, while operating under this regulation, an authorized person
takes any other species protected under the Endangered Species Act, the
Migratory Bird Treaty Act, or the Bald and Golden Eagle Protection Act,
that person must immediately report the take to the nearest Ecological
Services office of the Fish and Wildlife Service. See http://
www.fws.gov/where/ to find the location of the nearest Ecological
Services office.
(5) We may suspend or revoke the authority of any agency or
individual to undertake purple swamphen control if we find that agency
or individual has, without an applicable permit, taken actions that may
take Federally listed threatened or endangered species or any bird
species protected by the Bald and Golden Eagle Protection Act or the
Migratory Bird Treaty Act (see Sec.10.13 of subchapter A of this
chapter for the list of protected migratory bird species), or otherwise
violated Federal regulations.
[75 FR 9316, Mar. 1, 2010, as amended at 80 FR 15691, Mar. 25, 2015]
Sec.21.54 Control order for muscovy ducks in the United States.
(a) Control of muscovy ducks. Anywhere in the contiguous United
States except in Hidalgo, Starr, and Zapata Counties in Texas, and in
Alaska, Hawaii, and U.S. territories and possessions, landowners and
Federal, State, Tribal, and local wildlife management agencies, and
their tenants, employees, or agents may, without a Federal permit,
remove or destroy muscovy ducks (Cairina moschata) (including hybrids of
muscovy ducks), or their nests, or eggs at any time when found. Any
authorized person may temporarily possess, transport, and dispose of
muscovy ducks taken under this order.
(b) Muscovy ducks in Hidalgo, Starr, and Zapata Counties in Texas.
In these counties, take of muscovy ducks, their nests, and their eggs
may be allowed if we issue a depredation permit for the activity.
(c) Disposal of muscovy ducks. You may donate muscovy ducks taken
under this order to public museums or public institutions for scientific
or educational purposes, or you may dispose of them by burying or
incinerating them. You may not retain for personal use or consumption,
offer for sale, or sell a muscovy duck removed under authority of this
section, nor
[[Page 128]]
may you release it in any other location.
(d) Other provisions. (1) You must comply with any State,
territorial, or Tribal laws or regulations governing the removal or
destruction of muscovy ducks or their nests or eggs.
(2) You may not remove or destroy muscovy ducks or their nests or
eggs if doing so will adversely affect other migratory birds or species
designated as endangered or threatened under the authority of the
Endangered Species Act. If you use a firearm to kill muscovy ducks under
the provisions of this section, you must use nontoxic shot or nontoxic
bullets to do so.
(3) If you operate under this order, you must immediately report the
take of any species protected under the Endangered Species Act, or any
other bird species protected under the Migratory Bird Treaty Act, to the
Fish and Wildlife Service Ecological Services Office for the State or
location in which the take occurred.
(4) We reserve the right to suspend or revoke the authority of any
agency or individual to undertake muscovy duck control if we find that
the agency or individual has undertaken actions that may harm Federally
listed threatened or endangered species or are contrary to the
provisions of this part.
[75 FR 9321, Mar. 1, 2010]
Sec.21.55 Control order for invasive migratory birds in Hawaii.
(a) Control of cattle egrets and barn owls. Personnel of the
agencies listed in paragraph (b) of this section may take cattle egrets
(Bubulcus ibis) or barn owls (Tyto alba) using the methods authorized in
paragraph (c) of this section at any time anywhere in the State of
Hawaii, the Northwestern Hawaiian Islands, or the unincorporated
territory of Midway Atoll. No permit is necessary to engage in these
actions. In this section, the word ``you'' means a person operating
officially as an employee of one of the authorized agencies.
(b) Authorized agencies. (1) Federal Aviation Administration;
(2) Hawaii Department of Agriculture;
(3) Hawaii Department of Lands and Natural Resources, Division of
Forestry and Wildlife;
(4) National Oceanic and Atmospheric Administration;
(5) National Park Service;
(6) U.S. Department of Agriculture--Animal and Plant Health
Inspection Service, Wildlife Services;
(7) U.S. Department of Defense;
(8) U.S. Fish and Wildlife Service;
(9) U.S. Geological Survey; and
(10) University of Hawaii--Pacific Cooperative Studies Units with
program mandates to accomplish invasive species eradication and control,
including the five island Invasive Species Committees.
(c) Means of take. (1) You may take cattle egrets and barn owls by
means of lethal take or active nest take. Lethal take may occur by
firearm or slingshot in accordance with paragraph (c)(2) of this section
or lethal or live traps. Active nest take may occur by egg oiling in
accordance with paragraph (c)(3) of this section or destruction of nest
material and contents (including viable eggs and chicks). Birds may be
euthanized by cervical dislocation, CO2 asphyxiation, or
other recommended method in the American Veterinary Medical Association
Guidelines on Euthanasia.
(2) If you use a firearm or slingshot to kill cattle egrets or barn
owls under the provisions of this order, you must use nontoxic shot or
nontoxic bullets to do so. See Sec.20.21(j) of this chapter for a list
of approved nontoxic shot types.
(3) Eggs must be oiled with 100 percent corn oil, which is exempted
from regulation under the Federal Insecticide, Fungicide, and
Rodenticide Act by the U.S. Environmental Protection Agency.
(4) You may use concealment (such as blinds) and luring devices
(such as decoys or recorded calls) for locating, capturing, and/or
taking cattle egrets or barn owls.
(d) Land access. You must obtain appropriate landowner permission
before conducting activities authorized by this order.
(e) Relationship to other regulations. You may take cattle egrets
and barn owls under this order only in a way
[[Page 129]]
that complies with all applicable Federal, State, county, municipal, or
tribal laws. You are responsible for obtaining all required
authorizations to conduct this activity.
(f) Release of injured, sick, or orphaned cattle egrets or barn
owls. Wildlife rehabilitators, veterinarians, and all other individuals
or agencies who receive sick, injured, or orphaned cattle egrets or barn
owls are prohibited from releasing any individuals of those species back
into the wild in the State of Hawaii, the Northwestern Hawaiian Islands,
or the unincorporated territory of Midway Atoll. All applicable local,
State, Federal, and/or territorial regulations must be followed to
transfer, possess, and/or release cattle egrets or barn owls in any
other location.
(g) Disposal of cattle egret or barn owl carcasses, nests, or nest
contents. You may donate carcasses, nests, or nest contents taken under
this control order to public museums or public institutions for
scientific or educational purposes or to persons authorized by permit or
regulation to possess them. You may dispose of the carcasses by burial
or incineration; or, if the carcasses are not safely retrievable, you
may leave them in place. No one may retain for personal use, offer for
sale, barter or trade, or sell a cattle egret or a barn owl or any
feathers, parts, nests, or nest contents taken under this section.
(h) Endangered or threatened species. You may not take cattle egrets
or barn owls if doing so will adversely affect other migratory birds
protected under the Migratory Bird Treaty Act or species designated as
endangered or threatened under the authority of the Endangered Species
Act.
(i) Reporting take. Any agency engaged in control activities under
this control order must provide an annual report of take during the
calendar year for each species by January 31st of the following year.
The report must include a summary of the number of birds and number of
active nests taken for each species, the months in which they were
taken, and the island(s) on which they were taken. Multiple reports
within agencies may be combined, as appropriate. Submit annual reports
to the Pacific Region Migratory Bird Permit Office in Portland, Oregon,
at the address shown at 50 CFR 2.2.
(j) Reporting nontarget take. If, while operating under this control
order, you take any other species protected under the Endangered Species
Act or the Migratory Bird Treaty Act, you must report within 72 hours
the take to the Pacific Region Migratory Bird Permit Office in Portland,
Oregon, at the address shown at 50 CFR 2.2.
(k) Revocation of authority to operate under this order. We may
suspend or revoke the authority of any individual or agency to operate
under this order if we find that the individual or agency has taken
actions that may take federally listed endangered or threatened species
or any other bird species protected by the Migratory Bird Treaty Act
(see 50 CFR 10.13 for the list of protected migratory bird species), or
has violated any Federal or State law or regulation governing this
activity. We will notify the affected agency by certified mail, and may
change this control order accordingly.
[82 FR 34425, July 25, 2017]
Subpart E_Control of Overabundant Migratory Bird Populations
Sec.21.60 Conservation order for light geese.
(a) What is a conservation order? A conservation order is a special
management action that is needed to control certain wildlife populations
when traditional management programs are unsuccessful in preventing
overabundance of the population. We are authorizing a conservation order
under the authority of the Migratory Bird Treaty Act to reduce and
stabilize various light goose populations. The conservation order allows
new methods of taking light geese, allows shooting hours for light geese
to end one-half hour after sunset, and imposes no daily bag limits for
light geese inside or outside the migratory bird hunting season
frameworks as described in this section.
(b) Which waterfowl species are covered by the order? The
conservation order addresses management of greater snow (Chen
caerulescens atlantica), lesser
[[Page 130]]
snow (C. c. caerulescens), and Ross's (C. rossii) geese that breed,
migrate, and winter in North America. The term light geese refers
collectively to greater and lesser snow geese and Ross's geese.
(c) Where can the conservation order be authorized? The Director can
authorize the conservation order in these areas:
(1) The following States that are contained within the boundaries of
the Atlantic Flyway: Connecticut, Delaware, Florida, Georgia, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York, North
Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia,
West Virginia.
(2) The following States, or portions of States, that are contained
within the boundaries of the Mississippi and Central Flyways: Alabama,
Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota,
Tennessee, Texas, Wisconsin, and Wyoming.
(3) The following States, or portions of States, that are contained
within the boundaries of the Pacific Flyway: Alaska, Arizona,
California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah,
Washington, and Wyoming.
(4) Tribal lands within the geographic boundaries in paragraphs
(c)(1), (2), and (3) of this section.
(d) When will the Director authorize the conservation order in a
particular Flyway? (1) The Director may authorize the conservation order
for the reduction of greater snow geese for any State or Tribe contained
within the Atlantic Flyway by publishing a notice under paragraph (e) of
this section when the May Waterfowl Population Status report indicates
that the management goal of 500,000 birds has been exceeded and that
special conservation actions conducted in Canada are insufficient to
reduce the population. Authorization of the conservation order in the
U.S. portion of the Atlantic Flyway will occur after the Director
determines the degree to which the management goal has been exceeded,
the trajectory of population growth, anticipated harvest that would
result from implementation of the conservation order, and whether or not
similar conservation actions will be conducted in Canada.
(2) The Director may authorize the conservation order for the
reduction of mid-continent light geese (lesser snow and Ross's geese)
for any State or Tribe contained within the Mississippi and Central
Flyways by publishing a notice under paragraph (e) of this section when
the May Waterfowl Population Status report indicates that the management
goal of 1,600,000 birds (winter index for Mid-continent Population and
Western Central Flyway Population, combined) has been exceeded.
Authorization of the conservation order in the U.S. portion of the
Mississippi and Central Flyways will occur after the Director determines
the degree to which the management goal has been exceeded, the
trajectory of population growth, anticipated harvest that would result
from implementation of the conservation order, and whether or not
similar conservation actions will be conducted in Canada.
(3) The Director may authorize a conservation order for the
reduction of light geese (lesser snow and Ross's geese) for any State or
Tribe contained within the Pacific Flyway by publishing a notice under
paragraph (e) of this section when the Director determines that light
goose numbers in the western Arctic have exceeded the ability of their
breeding habitat to support them.
(e) How will the conservation order be authorized for a particular
Flyway? The Director will publish a notice in the Federal Register when
the conservation order is authorized in a particular Flyway.
(f) What is required for State/Tribal governments to participate in
the conservation order? When authorized by the Director, any State or
Tribal government responsible for the management of wildlife and
migratory birds may, without permit, kill or cause to be killed under
its general supervision, light geese under the following conditions:
[[Page 131]]
(1) Activities conducted under the conservation order may not affect
endangered or threatened species as designated under the Endangered
Species Act.
(2) Control activities must be conducted clearly as such and are
intended to relieve pressures on migratory birds and habitat essential
to migratory bird populations only and are not to be construed as
opening, reopening, or extending any open hunting season contrary to any
regulations promulgated under Section 3 of the Migratory Bird Treaty
Act.
(3) Control activities may be conducted only when all waterfowl
(including light goose) and crane hunting seasons, excluding falconry,
are closed.
(4) Control measures employed through this section may be used only
between the hours of one-half hour before sunrise to one-half hour after
sunset.
(5) Nothing in the conservation order may limit or initiate
management actions on Federal land without concurrence of the Federal
agency with jurisdiction.
(6) States and Tribes must designate participants who must operate
under the conditions of the conservation order.
(7) States and Tribes must inform participants of the requirements
and conditions of the conservation order that apply.
(8) States and tribes must keep annual records of activities carried
out under the authority of the conservation order. Specifically,
information must be collected on:
(i) The number of persons participating in the conservation order;
(ii) The number of days people participated in the conservation
order;
(iii) The number of light geese shot and retrieved under the
conservation order; and
(iv) The number of light geese shot but not retrieved.
(9) The States and Tribes must submit an annual report summarizing
activities conducted under the conservation order on or before September
15 of each year, to the Chief, Division of Migratory Bird Management, at
the address provided at 50 CFR 2.1(b). Information from Tribes may be
incorporated in State reports.
(g) What is required for persons to participate in the conservation
order? Individual participants in State or Tribal programs covered by
the conservation order must comply with the following provisions:
(1) Nothing in the conservation order authorizes the take of light
geese contrary to any State or Tribal laws or regulations, and none of
the privileges granted under the conservation order may be exercised
unless persons acting under the authority of the conservation order
possess whatever permit or other authorization(s) may be required for
such activities by the State or Tribal government concerned.
(2) Persons who take light geese under the conservation order may
not sell or offer for sale those birds or their plumage but may possess,
transport, and otherwise properly use them.
(3) Persons acting under the authority of the conservation order
must permit at all reasonable times, including during actual operations,
any Federal or State game or deputy game agent, warden, protector, or
other game law enforcement officer free and unrestricted access over the
premises on which such operations have been or are being conducted and
must promptly furnish whatever information an officer requires
concerning the operation.
(4) Persons acting under the authority of the conservation order may
take light geese by any method except those prohibited as follows:
(i) With a trap, snare, net, rifle, pistol, swivel gun, shotgun
larger than 10 gauge, punt gun, battery gun, machine gun, fish hook,
poison, drug, explosive, or stupefying substance.
(ii) From or by means, aid, or use of a sinkbox or any other type of
low floating device having a depression affording the person a means of
concealment beneath the surface of the water.
(iii) From or by means, aid, or use of any motor vehicle, motor-
driven land conveyance, or aircraft of any kind, except that paraplegics
and persons missing one or both legs may carry out take activities from
any stationary motor vehicle or stationary motor-driven land conveyance.
[[Page 132]]
(iv) From or by means of any motorboat or other craft having a motor
attached, or any sailboat, unless the motor has been completely shut off
and the sails furled, and its progress has ceased. A craft under power
may be used only to retrieve dead or crippled birds; however, the craft
may not be used under power to shoot any crippled bird.
(v) By the use or aid of live birds as decoys. It is a violation of
this paragraph (g) for any person to take light geese on an area where
tame or captive live geese are present unless such birds are and have
been for a period of 10 consecutive days before the taking, confined
within an enclosure that substantially reduces the audibility of their
calls and totally conceals the birds from the sight of light geese.
(vi) By means or aid of any motor-driven land, water, or air
conveyance, or any sailboat used for the purpose of or resulting in the
concentrating, driving, rallying, or stirring up of light geese.
(vii) By the aid of baiting, or on or over any baited area, where a
person knows or reasonably should know that the area is or has been
baited as described in Sec.20.11(j-k). Light geese may not be taken on
or over lands or areas that are baited areas, and where grain or other
feed has been distributed or scattered solely as the result of
manipulation of an agricultural crop or other feed on the land where
grown, or solely as the result of a normal agricultural operation as
described in Sec.20.11(h) and (l). However, nothing in this paragraph
(g) prohibits the taking of light geese on or over the following lands
or areas that are not otherwise baited areas:
(A) Standing crops or flooded standing crops (including aquatics);
standing, flooded, or manipulated natural vegetation; flooded harvested
croplands; or lands or areas where seeds or grains have been scattered
solely as the result of a normal agricultural planting, harvesting,
postharvest manipulation or normal soil stabilization practice as
described in Sec.20.11(g), (i), (l), and (m);
(B) From a blind or other place of concealment camouflaged with
natural vegetation;
(C) From a blind or other place of concealment camouflaged with
vegetation from agricultural crops, as long as such camouflaging does
not result in the exposing, depositing, distributing, or scattering of
grain or other feed; or
(D) Standing or flooded standing agricultural crops where grain is
inadvertently scattered solely as a result of a hunter entering or
exiting a hunting area, placing decoys, or retrieving downed birds.
(viii) Participants may not possess shot (either in shotshells or as
loose shot for muzzleloading) other than steel shot, bismuth-tin,
tungsten-iron, tungsten-polymer, tungsten-matrix, tungsten-bronze,
tungsten-nickel-iron, tungsten-tin-iron, tungsten-nickel-iron-tin,
tungsten-iron-copper-nickel, or other shots that are authorized in Sec.
20.21(j).
(h) Can the conservation order be suspended? The Director reserves
the right to suspend or revoke a State's or Tribe's authority under the
conservation order if we find that the State or Tribe has not adhered to
the terms and conditions specified in this section. The criteria for
suspension and revocation are outlined in Sec.13.27 and Sec.13.28 of
this subchapter. Upon appeal, final decisions to revoke authority will
be made by the Director. Additionally, at such time that the Director
determines that a specific population of light geese no longer poses a
threat to habitats, agricultural crops, or other interests, or is within
Flyway management objectives, the Director may choose to terminate part
or all of the conservation order.
(i) Under what conditions would the conservation order be suspended?
The Director will annually assess the overall impact and effectiveness
of the conservation order on each light goose population to ensure
compatibility with long-term conservation of this resource. The Director
will suspend the conservation order if at any time evidence clearly
demonstrates that an individual light goose population no longer
presents a serious threat of injury to the area or areas involved.
Suspension by the Director will occur by publication of a notice in the
Federal Register. However, resumption of growth by the light goose
population in
[[Page 133]]
question may warrant reinstatement of the conservation order to control
the population. The Director will publish a notice of such reinstatement
in the Federal Register. Depending on the status of individual light
goose populations, it is possible that a conservation order may be in
effect for one or more light goose populations, but not others.
(j) What are the information collection requirements? The
information collection requirements associated with the conservation
order are described in paragraphs (f)(6) through (9) of this section.
Reported information helps us to assess the effectiveness of light geese
population control methods and strategies and assess whether or not
additional population control methods are needed. The Office of
Management and Budget has approved this information collection and
assigned OMB Control No. 1018-0103. We may not conduct or sponsor and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number. At any time, you may
submit comments on these information collection requirements to the
Service's Information Collection Clearance Officer at the address
provided at 50 CFR 2.1(b).
[73 FR 65951, Nov. 5, 2008; 73 FR 70914, Nov. 24, 2008, as amended at 79
FR 43966, July 29, 2014; 80 FR 13500, Mar. 16, 2015]
Sec.21.61 Population control of resident Canada geese.
(a) Which Canada geese are covered by this regulation? This
regulation addresses the population control of resident Canada geese, as
defined in Sec.21.3.
(b) What is the resident Canada goose population control program,
and what is its purpose? The resident Canada goose population control
program is a managed take program implemented under the authority of the
Migratory Bird Treaty Act to reduce and stabilize resident Canada goose
populations when traditional and otherwise authorized management
measures are unsuccessful, not feasible for dealing with, or applicable,
in preventing injury to property, agricultural crops, public health, and
other interests from resident Canada geese. The Director is authorized
to allow States and Tribes to implement a population control, or managed
take, program to remedy these injuries. When authorized by the Director,
managed take allows additional methods of taking resident Canada geese,
allows shooting hours for resident Canada geese to extend to one-half
hour after sunset, and removes daily bag limits for resident Canada
geese inside or outside the migratory bird hunting season frameworks as
described in this section. The intent of the program is to reduce
resident Canada goose populations in order to protect personal property
and agricultural crops and other interests from injury and to resolve
potential concerns about human health. The management and control
activities allowed or conducted under the program are intended to
relieve or prevent damage and injurious situations. No person should
construe this program as opening, reopening, or extending any hunting
season contrary to any regulations established under section 3 of the
Migratory Bird Treaty Act.
(c) What areas are eligible to participate in the program? When
approved by the Director, the State and Tribal wildlife agencies of
Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West
Virginia, Wisconsin, and Wyoming may implement the resident Canada goose
population control program components in the Atlantic, Central, and
Mississippi Flyway portions of these States.
(d) What is required in order for State governments to participate
in a managed take program? Following the conclusion of the first full
operational year of Sec. Sec.21.49 through 21.52 of this part, any
wildlife agency from a State listed in 21.61(c) may request approval for
the population control program. A request must include a discussion of
the State's or Tribe's efforts to address its
[[Page 134]]
injurious situations utilizing the methods approved in this rule or a
discussion of the reasons why the methods authorized by these rules are
not feasible for dealing with, or applicable to, the injurious
situations that require further action. Discussions should be detailed
and provide the Service with a clear understanding of the injuries that
continue, why the authorized methods utilized have not worked, and why
methods not utilized could not effectuate resolution of the injuries. A
State's request for approval may be for an area or areas smaller than
the entire State. Upon written approval by the Director, any State or
Tribal government responsible for the management of wildlife and
migratory birds may, without permit, kill or cause to be killed under
its general supervision, resident Canada geese under the following
conditions:
(1) Activities conducted under the managed take program may not
affect endangered or threatened species as designated under the
Endangered Species Act.
(2) Control activities may be conducted under this section only
between August 1 and August 31.
(3) Control measures employed through this section may be
implemented only between the hours of one-half hour before sunrise to
one-half hour after sunset.
(4) Nothing in the program may limit or initiate management actions
on Federal land without concurrence of the Federal agency with
jurisdiction.
(5) States and Tribes must designate participants who must operate
under the conditions of the managed take program.
(6) States and Tribes must inform participants of the requirements/
conditions of the program that apply.
(7) States and Tribes must keep annual records of activities carried
out under the authority of the program. Specifically, information must
be collected on:
(i) The number of individuals participating in the program;
(ii) The number of days individuals participated in the program;
(iii) The total number of resident Canada geese shot and retrieved
during the program; and
(iv) The number of resident Canada geese shot but not retrieved. The
States and Tribes must submit an annual report summarizing activities
conducted under the program and an assessment of the continuation of the
injuries on or before June 1 of each year to the Chief, Division of
Migratory Bird Management, at the address provided at 50 CFR 2.1(b).
(e) What is required for individuals to participate in the program?
Individual participants in State and Tribal programs covered by the
managed take program must comply with the following requirements:
(1) Participants must comply with all applicable State and Tribal
laws or regulations including possession of whatever permit(s) or other
authorization(s) may be required by the State or Tribal government
concerned.
(2) Participants who take resident Canada geese under the program
may not sell or offer for sale those birds or their plumage, but may
possess, transport, and otherwise properly use them.
(3) Participants must permit at all reasonable times, including
during actual operations, any Service special agent or refuge officer,
State or Tribal wildlife or deputy wildlife agent, warden, protector, or
other wildlife law enforcement officer free and unrestricted access over
the premises on which such operations have been or are being conducted
and must promptly furnish whatever information an officer requires
concerning the operation.
(4) Participants may take resident Canada geese by any method except
those prohibited as follows:
(i) With a trap, snare, net, rifle, pistol, swivel gun, shotgun
larger than 10 gauge, punt gun, battery gun, machine gun, fish hook,
poison, drug, explosive, or stupefying substance.
(ii) From or by means, aid, or use of a sinkbox or any other type of
low-floating device, having a depression affording the person a means of
concealment beneath the surface of the water.
(iii) From or by means, aid, or use of any motor vehicle, motor-
driven land conveyance, or aircraft of any kind, except that paraplegic
persons and persons missing one or both legs may take from any
stationary motor vehicle or
[[Page 135]]
stationary motor-driven land conveyance.
(iv) From or by means of any motorboat or other craft having a motor
attached, or any sailboat, unless the motor has been completely shut off
and the sails furled, and its progress has ceased. A craft under power
may be used only to retrieve dead or crippled birds; however, the craft
may not be used under power to shoot any crippled birds.
(v) By the use or aid of live birds as decoys. No person may take
resident Canada geese on an area where tame or captive live geese are
present unless such birds are, and have been for a period of 10
consecutive days before the taking, confined within an enclosure that
substantially reduces the audibility of their calls and totally conceals
the birds from the sight of resident Canada geese.
(vi) By means or aid of any motor-driven land, water, or air
conveyance, or any sailboat used for the purpose of or resulting in the
concentrating, driving, rallying, or stirring up of resident Canada
geese.
(vii) By the aid of baiting, or on or over any baited area, where a
person knows or reasonably should know that the area is or has been
baited as described in Sec.20.11(j) and (k) of this part. Resident
Canada geese may not be taken on or over lands or areas that are baited
areas, and where grain or other feed has been distributed or scattered
solely as the result of manipulation of an agricultural crop or other
feed on the land where grown, or solely as the result of a normal
agricultural operation as described in Sec.20.11(h) and (l) of this
part. However, nothing in this paragraph prohibits the taking of
resident Canada geese on or over the following lands or areas that are
not otherwise baited areas:
(A) Standing crops or flooded standing crops (including aquatics);
standing, flooded, or manipulated natural vegetation; flooded harvested
croplands; or lands or areas where seeds or grains have been scattered
solely as the result of a normal agricultural planting, harvesting,
post-harvest manipulation or normal soil stabilization practice as
described in Sec.20.11(g), (i), (l), and (m) of this part;
(B) From a blind or other place of concealment camouflaged with
natural vegetation;
(C) From a blind or other place of concealment camouflaged with
vegetation from agricultural crops, as long as such camouflaging does
not result in the exposing, depositing, distributing, or scattering of
grain or other feed; or
(D) Standing or flooded standing agricultural crops where grain is
inadvertently scattered solely as a result of a hunter entering or
exiting a hunting area, placing decoys, or retrieving downed birds.
(E) Participants may not possess shot (either in shotshells or as
loose shot for muzzleloading) other than steel shot, bismuth-tin,
tungsten-iron, tungsten-polymer, tungsten-matrix, tungsten-nickel iron,
or other shots that are authorized in Sec.20.21(j) of this part.
(f) Under what conditions would we suspend the managed take program?
Following authorization by the Director, we will annually assess the
overall impact and effectiveness of the program on resident Canada goose
populations to ensure compatibility with long-term conservation of this
resource. If at any time evidence is presented that clearly demonstrates
that resident Canada geese populations no longer need to be reduced in
order to allow resolution or prevention of injury to people, property,
agricultural crops, or other interests, the Director, in writing, will
suspend the program for the resident Canada goose population in
question. However, resumption of injuries caused by growth of the
population and not otherwise addressable by the methods available in
part 21 may warrant reinstatement of such regulations. A State must
reapply for approval, including the same information and discussions
noted in 21.61(d). Depending on the location of the injury or threat or
injury, the Director, in writing, may suspend or reinstate this
authorization for one or more resident Canada goose populations, but not
others.
(g) What population information is the State or Tribe required to
collect concerning the resident Canada goose managed take program?
Participating States and Tribes must provide an annual estimate of the
breeding population and
[[Page 136]]
distribution of resident Canada geese in their State. The States and
Tribes must submit this estimate on or before August 1 of each year, to
the Chief, Division of Migratory Bird Management, at the address
provided at 50 CFR 2.1(b).
(h) What are the general program conditions and restrictions? The
program is subject to the conditions elsewhere in this section, and,
unless otherwise specifically authorized, the following conditions:
(1) Nothing in this section applies to any Federal land within a
State's or Tribe's boundaries without written permission of the Federal
agency with jurisdiction.
(2) States may not undertake any actions under this section if the
activities adversely affect other migratory birds or species designated
as endangered or threatened under the authority of the Endangered
Species Act. Persons operating under this section must immediately
report the take of any species protected under the Endangered Species
Act to the Service. Further, to protect certain species from being
adversely affected by management actions, States must:
(i) Follow the Federal State Contingency Plan for the whooping
crane;
(ii) Conduct no activities within 300 meters of a whooping crane or
Mississippi sandhill crane nest; and
(iii) Follow all Regional (or National when available) Bald Eagle
Nesting Management guidelines for all management activities.
(i) Has the Office of Management and Budget (OMB) approved the
information collection requirements of the program? OMB has approved the
information collection and recordkeeping requirements of the program
under OMB control number 1018-0133. We may not conduct or sponsor, and
you are not required to respond to, a collection of information unless
it displays a currently valid OMB control number. You may send comments
on the information collection and recordkeeping requirements to the
Service's Information Collection Clearance Officer at the address
provided at 50 CFR 2.1(b).
[71 FR 45992, Aug. 10, 2006, as amended at 72 FR 46409, Aug. 20, 2007;
79 FR 43966, July 29, 2014]
PART 22_EAGLE PERMITS--Table of Contents
Subpart A_Introduction
Sec.
22.1 What is the purpose of this part?
22.2 What activities does this part apply to?
22.3 Definitions.
22.4 Information collection requirements.
Subpart B_General Requirements
22.11 What is the relationship to other permit requirements?
22.12 What activities are illegal?
Subpart C_Eagle Permits
22.21 What are the requirements concerning scientific and exhibition
purpose permits?
22.22 What are the requirements concerning permits for Indian religious
purposes?
22.23 What are the requirements for permits to take depredating eagles
and eagles that pose a risk to human or eagle health and
safety?
22.24 Permits for falconry purposes.
22.25 What are the requirements concerning permits to take golden eagle
nests?
22.26 Permits for eagle take that is associated with, but not the
purpose of, an activity.
22.27 Removal of eagle nests.
22.28 Permits for bald eagle take exempted under the Endangered Species
Act.
Subpart D_Depredation Control Orders on Golden Eagles
22.31 Golden eagle depredations control order on request of Governor of
a State.
22.32 Conditions and limitations on taking under depredation control
order.
Authority: 16 U.S.C. 668-668d; 703-712; 1531-1544.
Source: 39 FR 1183, Jan. 4, 1974, unless otherwise noted.
Subpart A_Introduction
Sec.22.1 What is the purpose of this part?
This part controls the taking, possession, and transportation within
the United States of bald eagles (Haliaeetus leucocephalus) and golden
eagles (Aquila chrysaetos) and their parts, nests, and eggs for
scientific, educational, and depredation control purposes; for the
religious purposes of American Indian tribes; and to protect other
interests in a particular locality. This part also governs the
transportation into or out of the United States of bald and golden
[[Page 137]]
eagle parts for scientific, educational, and Indian religious purposes.
The import, export, purchase, sale, trade, or barter of bald and golden
eagles, or their parts, nests, or eggs is prohibited.
[64 FR 50472, Sept. 17, 1999, as amended at 73 FR 29083, May 20, 2008]
Sec.22.2 What activities does this part apply to?
(a)(1) You can possess or transport within the United States,
without a Federal permit:
(i) Any live or dead bald eagles, or their parts, nests, or eggs
that were lawfully acquired before June 8, 1940; and
(ii) Any live or dead golden eagles, or their parts, nests, or eggs
that were lawfully acquired before October 24, 1962.
(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 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 dead bald or
golden eagles, their parts, nests, or dead eagles, if you acquire a
permit issued under Sec.22.22 of this part.
(3) No exemption from any statute or regulation will apply to any
offspring of these pre-act birds.
(4) You must mark all shipments containing bald or golden eagles,
alive or dead, their parts, nests, or eggs as directed in Sec.14.81 of
this subchapter. The markings must contain the name and address of the
person the shipment is going to, the name and address of the person the
shipment is coming from, an accurate list of contents by species, and
the number of each species.
(b) The provisions in this part are in addition to, and are not in
lieu of, other regulations of this subchapter B which may require a
permit or prescribe additional restrictions or conditions for the
importation, exportation, and interstate transportation of wildlife (see
also part 13 of this subchapter).
[39 FR 1183, Jan. 4, 1974, as amended at 64 FR 50472, Sept. 17, 1999]
Sec.22.3 Definitions.
In addition to the definitions contained in part 10 of this
subchapter, and unless the context otherwise requires, in this part 22:
Alternate nest means one of potentially several nests within a
nesting territory that is not an in-use nest at the current time. When
there is no in-use nest, all nests in the territory are alternate nests.
Communal roost site means an area where eagles gather repeatedly in
the course of a season and shelter overnight and sometimes during the
day in the event of inclement weather.
Compatible with the preservation of the bald eagle or the golden
eagle means consistent with the goals of maintaining stable or
increasing breeding populations in all eagle management units and the
persistence of local populations throughout the geographic range of each
species.
Cumulative effects means the incremental environmental impact or
effect of the proposed action, together with impacts of past, present,
and reasonably foreseeable future actions.
Disturb means to agitate or bother a bald or golden eagle to a
degree that causes, or is likely to cause, based on the best scientific
information available, (1) injury to an eagle, (2) a decrease in its
productivity, by substantially interfering with normal breeding,
feeding, or sheltering behavior, or (3) nest abandonment, by
substantially interfering with normal breeding, feeding, or sheltering
behavior.
Eagle management unit (EMU) means a geographically bounded region
within which permitted take is regulated to meet the management goal of
maintaining stable or increasing breeding populations of bald or golden
eagles.
Eagle nest means any assemblage of materials built, maintained, or
used by bald eagles or golden eagles for the purpose of reproduction.
Export for the purpose of this part does not include the
transportation of any dead bald or golden eagles, or their parts, nests,
or dead eggs out of the United States when accompanied with a valid
transportation permit.
Foraging area means an area where eagles regularly feed during one
or more seasons.
[[Page 138]]
Import for the purpose of this part does not include the
transportation of any dead bald or golden eagles, or their parts, nests,
or dead eggs into the United States when accompanied with a valid
transportation permit.
Important eagle-use area means an eagle nest, foraging area, or
communal roost site that eagles rely on for breeding, sheltering, or
feeding, and the landscape features surrounding such nest, foraging
area, or roost site that are essential for the continued viability of
the site for breeding, feeding, or sheltering eagles.
In-use nest means a bald or golden eagle nest characterized by the
presence of one or more eggs, dependent young, or adult eagles on the
nest in the past 10 days during the breeding season.
Indirect effects means effects for which a proposed action is a
cause, and which may occur later in time and/or be physically manifested
beyond the initial impacts of the action, but are still reasonably
likely to occur.
Local area population (LAP) means the bald or golden eagle
population within the area of a human activity or project bounded by the
natal dispersal distance for the respective species. The LAP is
estimated using the average eagle density of the EMU or EMUs where the
activity or project is located.
Necessary to ensure public health and safety means required to
maintain society's well-being in matters of health and safety.
Nesting attempt means any activity by golden eagles involving egg
laying and incubation as determined by the presence of an egg attended
by an adult, an adult in incubation posture, or other evidence
indicating recent use of a golden eagle nest for incubation of eggs or
rearing of young.
Nesting territory means the area that contains one or more eagle
nests within the home range of a mated pair of eagles, regardless of
whether such nests were built by the current resident pair.
Person means an individual, corporation, partnership, trust,
association, or any other private entity, or any officer, employee,
agent, department, or instrumentality of any State or political
subdivision of a State.
Practicable means available and capable of being done after taking
into consideration existing technology, logistics, and cost in light of
a mitigation measure's beneficial value to eagles and the activity's
overall purpose, scope, and scale.
Resource development or recovery includes, but is not limited to,
mining, timbering, extracting oil, natural gas and geothermal energy,
construction of roads, dams, reservoirs, power plants, power
transmission lines, and pipelines, as well as facilities and access
routes essential to these operations, and reclamation following any of
these operations.
Safety emergency means a situation that necessitates immediate
action to alleviate a threat of bodily harm to humans or eagles.
Take means pursue, shoot, shoot at, poison, wound, kill, capture,
trap, collect, destroy, molest, or disturb.
Transportation into or out of the United States for the purpose of
this part means that the permitted item or items transported into or out
of the United States do not change ownership at any time, they are not
transferred from one person to another in the pursuit of gain or profit,
and they are transported into or out of the United States for Indian
religious purposes, or for scientific or exhibition purposes under the
conditions and during the time period specified on a transportation
permit for the items.
[39 FR 1183, Jan. 4, 1974, as amended at 48 FR 57300, Dec. 29, 1983; 64
FR 50472, Sept. 17, 1999; 72 FR 31139, June 5, 2007; 74 FR 46876, Sept.
11, 2009; 81 FR 91550, Dec. 16, 2016]
Sec.22.4 Information collection requirements.
(a) The Office of Management and Budget approved the information
collection requirements contained in this part 22 under 44 U.S.C. 3507
and assigned OMB Control Number 1018-0022. The Service may not conduct
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number. We
are collecting
[[Page 139]]
this information to provide information necessary to evaluate permit
applications. We will use this information to review permit applications
and make decisions, according to criteria established in the Bald and
Golden Eagle Protection Act and its regulations, on the issuance,
suspension, revocation, or denial of permits. You must respond to obtain
or retain a permit.
(b) Direct comments regarding any aspect of these reporting
requirements to the Service's Information Collection Clearance Officer
at the address provided at 50 CFR 2.1(b).
[63 FR 52637, Oct. 1, 1998, as amended at 74 FR 46876, Sept. 11, 2009;
79 FR 43966, July 29, 2014; 81 FR 91550, Dec. 16, 2016]
Subpart B_General Requirements
Sec.22.11 What is the relationship to other permit requirements?
You may not take, possess, or transport any bald eagle (Haliaeetus
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts,
nests, or eggs of such birds, except as allowed by a valid permit issued
under this part, 50 CFR part 13, 50 CFR part 17, and/or 50 CFR part 21
as provided by Sec.21.2, or authorized under a depredation order
issued under subpart D of this part. We will accept a single application
for a permit under this part and any other parts of this subchapter B if
it includes all of the information required for an application under
each applicable part.
(a) A permit that covers take of bald eagles or golden eagles under
50 CFR part 17 for purposes of providing prospective or current ESA
authorization constitutes a valid permit issued under this part for any
take authorized under the permit issued under part 17 as long as the
permittee is in full compliance with the terms and conditions of the
permit issued under part 17. The provisions of part 17 that originally
applied will apply for purposes of the Eagle Act authorization, except
that the criterion for revocation of the permit is that the activity is
incompatible with the preservation of the bald eagle or the golden eagle
rather than inconsistent with the criterion set forth in 16 U.S.C.
1539(a)(2)(B)(iv).
(b) You do not need a permit under parts 17 and 21 of this
subchapter B for any activity permitted under this part 22 with respect
to bald or golden eagles or their parts, nests, or eggs.
(c) A permit under this part only authorizes take, possession, and/
or transport under the Bald and Golden Eagle Protection Act and does not
provide authorization under the Migratory Bird Treaty Act or the
Endangered Species Act for the take, possession, and/or transport of
migratory birds or endangered or threatened species other than bald or
golden eagles.
(d) If you are transporting dead bald or golden eagles, or their
parts, nests, or dead eggs into or out of the United States, you will
also need a Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES) permit under part 23 of this subchapter.
[64 FR 50472, Sept. 17, 1999, as amended at 68 FR 61140, Oct. 27, 2003;
73 FR 29083, May 20, 2008; 81 FR 91550, Dec. 16, 2016]
Sec.22.12 What activities are illegal?
(a) You may not sell, purchase, barter, trade, import, or export, or
offer for sale, purchase, barter, or trade, at any time or in any
manner, any bald eagle (Haliaeetus leucocephalus), or any golden eagle
(Aquila chrysaetos), or the parts, nests, or eggs of these birds, and we
will not issue a permit to authorize these acts.
(b) You may not transport into or out of the United States any live
bald or golden eagle, or any live egg of those birds, and we will not
issue a permit to authorize these acts.
[64 FR 50472, Sept. 17, 1999]
Subpart C_Eagle Permits
Sec.22.21 What are the requirements concerning scientific
and exhibition 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 or exhibition
[[Page 140]]
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 live eggs of these birds.
(a) How do I apply if I want a permit for scientific and exhibition
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 live or dead eggs for
scientific or exhibition 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 dead eggs for scientific or exhibition purposes, you must
submit your application to the Office 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
sent to the Division of Management Authority at the address provided at
50 CFR 2.1(b).
(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 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;
(vi) Complete explanation and justification of request, nature of
project or study, number of specimens now at institution, reason these
are inadequate, 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 or
exhibition 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 only 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 or exhibition purposes 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 which 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 or exhibition purposes of public
museums, public scientific societies, or public zoological parks.
(d) Tenure of permits. The tenure of permits to take bald or golden
eagles for scientific or exhibition purposes
[[Page 141]]
shall be that shown on the face of the permit.
[39 FR 1183, Jan. 4, 1974, as amended at 63 FR 52638, Oct. 1, 1998; 64
FR 50472, Sept. 17, 1999; 79 FR 43966, July 29, 2014]
Sec.22.22 What are the requirements concerning permits for Indian
religious purposes?
We will issue a permit only to members of Indian entities recognized
and eligible to receive services from the United States Bureau of Indian
Affairs listed under 25 U.S.C. 479a-1 engaged in religious activities
who satisfy all the issuance criteria of this section. We may, under the
provisions of this section, issue a permit authorizing the taking,
possession, and transportation within the United States, or
transportation into or out of the United States of lawfully acquired
bald eagles or golden eagles, or their parts, nests, or eggs for Indian
religious use. 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 live eggs of these birds.
(a) How do I apply if I want a permit for Indian religious purposes?
You must submit applications for permits to take, possess, transport
within the United States, or transport into or out of the United States
lawfully acquired bald or golden eagles, or their parts, nests, or eggs
for Indian religious use to the appropriate Regional Director--
Attention: Migratory Bird Permit Office. You can find addresses for the
appropriate Regional Directors in 50 CFR 2.2. If you are applying for a
permit to transport into or out of the United States, your application
must contain all the information necessary for the issuance of a CITES
permit. You must comply with all the requirements in part 23 of this
subchapter before international travel. 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:
(1) Species and number of eagles or feathers proposed to be taken,
or acquired by gift or inheritance.
(2) State and local area where the taking is proposed to be done, or
from whom acquired.
(3) Name of tribe with which applicant is associated.
(4) Name of tribal religious ceremony(ies) for which required.
(5) You must attach a certification of enrollment in an Indian tribe
that is federally recognized under the Federally Recognized Tribal List
Act of 1994, 25 U.S.C. 479a-1, 108 Stat. 4791 (1994). The certificate
must be signed by the tribal official who is authorized to certify that
an individual is a duly enrolled member of that tribe, and must include
the official title of that certifying official.
(b) What are the permit 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
Indian religious use are subject to the following conditions:
(1) Bald or golden eagles or their parts possessed under permits
issued pursuant to this section are not transferable, except such birds
or their parts may be handed down from generation to generation or from
one Indian to another in accordance with tribal or religious customs;
and
(2) You must submit reports or inventories, including photographs,
of eagle feathers or parts on hand as requested by the issuing office.
(c) How do we evaluate your application for a permit? We will
conduct an investigation and will only 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
Indian religious use when we determine that the taking, possession, or
transportation is compatible with the preservation of the bald and
golden eagle. In making a determination, we will consider, among other
criteria, the following:
(1) The direct or indirect effect which issuing such permit would be
likely to have upon the wild populations of bald or golden eagles; and
(2) Whether the applicant is an Indian who is authorized to
participate in bona fide tribal religious ceremonies.
(d) How long are the permits valid? We are authorized to amend,
suspend, or
[[Page 142]]
revoke any permit that is issued under this section (see Sec. Sec.
13.23, 13.27, and 13.28 of this subchapter).
(1) A permit issued to you that authorizes you to take bald or
golden eagles will be valid during the period specified on the face of
the permit, but will not be longer than 1 year from the date it is
issued.
(2) A permit issued to you that authorizes you to transport and
possess bald or golden eagles or their parts, nests, or eggs within the
United States will be valid for your lifetime.
(3) A permit authorizing you to transport dead bald eagles or golden
eagles, or their parts, nests, or dead eggs into or out of the United
States can be used for multiple trips to or from the United States, but
no trip can be longer than 180 days. The permit will be valid during the
period specified on the face of the permit, not to exceed 3 years from
the date it is issued.
[39 FR 1183, Jan. 4, 1974, as amended at 63 FR 52638, Oct. 1, 1998; 64
FR 50473, Sept. 17, 1999]
Sec.22.23 What are the requirements for permits to take depredating
eagles and eagles that pose a risk to human or eagle health and safety?
(a) How do I apply for a permit? You must submit applications for
permits under this section to the appropriate Regional Director--
Attention: Migratory Bird Permit Office. You can find addresses for the
appropriate Regional Directors in 50 CFR 2.2. Your application must
contain the information and certification required by Sec.13.12(a) of
this subchapter, and the following additional information:
(1) Species and number of eagles proposed to be taken;
(2) Location and description of property where taking is proposed;
(3) Inclusive dates for which permit is requested;
(4) Method of taking proposed;
(5) Kind and number of livestock or domestic animals owned by
applicant, if applicable;
(6) Kind and amount of alleged damage, or description of the risk
posed to human health and safety or eagles; and
(7) Name, address, age, and business relationship with applicant of
any person the applicant proposes to act for him as his agent in the
taking of such eagles.
(b) What are the permit conditions? In addition to the general
conditions set forth in part 13 of this subchapter B, permits to take
bald or golden eagles under this section are subject to the following
conditions:
(1) Bald or golden eagles may be taken under permit by firearms,
traps, or other suitable means except by poison or from aircraft;
(2) The taking of eagles under permit may be done only by the
permittee or his agents named in the permit;
(3) Any eagle taken under authority of such permit will be promptly
turned over to a Service agent or other game law enforcement officer
designated in the permit; and
(4) In addition to any reporting requirement on a permit, you must
submit a report of activities conducted under the permit to the
appropriate Regional Director--Attention: Migratory Bird Permit Office
within 10 days following completion of the taking operations or the
expiration of the permit, whichever occurs first.
(c) Issuance criteria. The Director will not issue a permit to take
bald or golden eagles unless the Director has determined that such
taking is compatible with the preservation of the bald or golden eagle.
In making such determination, the Director will consider the following:
(1) The direct or indirect effect which issuing such permit would be
likely to have upon the wild population of bald or golden eagles;
(2) Whether evidence shows that bald or golden eagles have in fact
become seriously injurious to wildlife or to agriculture or other
interests in the particular locality to be covered by the permit and the
injury complained of is substantial, or that bald or golden eagles pose
a significant risk to human or eagle health and safety; and
(3) Whether the only way to abate or prevent the damage caused by
the bald or golden eagle is to take some or all of the offending birds.
(d) Tenure of permits. The tenure of any permit to take bald or
golden eagles under this section is that shown on the face of the
permit. We will not issue these permits for terms longer
[[Page 143]]
than 90 days, except that permits to authorize disturbance associated
with hazing eagles from the vicinity may be valid for up to 5 years. We
may amend, suspend, or revoke permits issued for a period of longer than
90 days if new information indicates that revised permit conditions are
necessary, or that suspension or revocation is necessary, to safeguard
local or regional eagle populations.
[39 FR 1183, Jan. 4, 1974, as amended at 63 FR 52638, Oct. 1, 1998; 64
FR 50473, Sept. 17, 1999; 74 FR 46876, Sept. 11, 2009]
Sec.22.24 Permits for falconry purposes.
(a) Use of golden eagles in falconry. If you meet the conditions
outlined in Sec.21.29 (c)(3)(iv) of this part, and you have a permit
to possess a golden eagle (Aquila chrysaetos) from your State, tribe, or
territory, we consider your permit sufficient for the purposes of the
Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d), subject to
the requirement that take of golden eagles for falconry is compatible
with the preservation of the golden eagle.
(b) Transfer of golden eagles trapped by government employees to
other permittees. If you have the necessary permit(s) from your State,
tribe, or territory, a government employee who has trapped a golden
eagle under a Federal depredation permit or under a depredation control
order may transfer the bird to you if he or she cannot release the eagle
in an appropriate location. A golden eagle may only be taken from a
livestock or wildlife depredation area declared by USDA Wildlife
Services and permitted under Sec.22.23, or from a livestock
depredation area authorized in accordance with Subpart D, Depredation
Control Orders on Golden Eagles.
[73 FR 59477, Oct. 8, 2008, as amended at 75 FR 932, Jan. 7, 2010]
Sec.22.25 What are the requirements concerning permits to take
golden eagle nests?
The Director may, upon receipt of an application and in accordance
with the issuance criteria of this section, issue a permit authorizing
any person to take alternate golden eagle nests during a resource
development or recovery operation if the taking is compatible with the
preservation of golden eagles. The information collection requirements
contained within this section have been approved by the Office of
Management and Budget under 44 U.S.C. 3507 and assigned clearance number
1018-0022. This information is being collected to provide information
necessary to evaluate permit applications. This information will be used
to review permit applications and make decisions, according to the
criteria established in this section for the issuance or denial of such
permits. The obligation to respond is required to obtain or retain a
permit.
(a) How do I apply for a permit to take golden eagle nests? You must
submit applications for permits to take golden eagle nests to the
appropriate Regional Director--Attention: Migratory Bird Permit Office.
You can find addresses for the appropriate Regional Directors in 50 CFR
2.2. We will only accept applications if you are engaged in a resource
development or recovery operation, including the planning and permitting
stages of an operation. Your application must contain the general
information and certification required by Sec.13.12(a) of this chapter
plus the following additional information:
(1) A description of the resource development or recovery operation
in which the applicant is engaged.
(2) The number of golden eagle nests proposed to be taken.
(3) A description of the property on which the taking is proposed,
with reference made to its exact geographic location. An appropriately
scaled map or plat must be included which delineates the area of the
resource development or recovery operation and identifies the exact
location of each golden eagle nest proposed to be taken. The map or plat
must contain enough detail so that each golden eagle nest proposed to be
taken can be readily located by the Service.
(4) Nest and territory occupancy data. (i) For each golden eagle
nest proposed to be taken, the applicant must identify on an
appropriately scaled map or plat the exact location of each golden eagle
nest in the nesting territory. The map or plat must contain enough
details so that each golden eagle nest can be readily located by the
Service.
[[Page 144]]
(ii) A description of the monitoring that was done to verify that
eagles are not attending the nest for breeding purposes, and any
additional available documentation used in identifying which nests
within the territory were in-use nests in current and past breeding
seasons.
(5) A description of each activity to be performed during the
resource development or recovery operation which involves the taking of
a golden eagle nest.
(6) The length of time for which the permit is requested, including
the dates on which the proposed resource development or recovery
operation is to begin and end.
(7) A statement indicating the intended disposition of each nest
proposed to be taken. Applicants should state whether they are willing
to collect any nest for scientific or educational purposes.
(8) A statement indicating any proposed mitigation measures that are
compatible with the resource development or recovery operation to
encourage golden eagles to reoccupy the resource development or recovery
site. Mitigation measures may include reclaiming disturbed land to
enhance golden eagle nesting and foraging habitat, relocating in
suitable habitat any inactive golden eagle nest taken, or establishing
one or more nest sites. If the establishment of one or more nest sites
is proposed, a description of the materials and methods to be used and
the exact location of each artificial nest site must be included.
(b) Additional permit conditions. In addition to the general
conditions set forth in part 13 of this chapter, permits to take golden
eagle nests are subject to the following additional conditions:
(1) Only alternate golden eagle nests may be taken;
(2) The permittee shall submit a report of activities conducted
under the permit to the Director within ten (10) days following the
permit's expiration;
(3) The permittee shall notify the Director in writing at least 10
days but not more than 30 days before any golden eagle nest is taken;
(4) The permittee must comply with any mitigation and monitoring
measures determined by the Director to be practicable and compatible
with the resource development or recovery operation; and
(5) Any permit issued before the commencement of a resource
development or recovery operation is invalid if the activity which
required a permit is not performed.
(c) Issuance criteria. The Director shall conduct an investigation
and not issue a permit to take any golden eagle nest unless such taking
is compatible with the preservation of golden eagles. In making such
determination, the Director shall consider the following:
(1) Whether the applicant can reasonably conduct the resource
development or recovery operation in a manner that avoids taking any
golden eagle nest;
(2) The total number of golden eagle nests proposed to be taken;
(3) Whether suitable golden eagle nesting and foraging habitat
unaffected by the resource development or recovery operation is
available to accommodate any golden eagles displaced by the resource
development or recovery operation; and
(4) Whether practicable mitigation measures compatible with the
resource development or recovery operation are available to encourage
reoccupation by golden eagles of the resource development or recovery
site. Mitigation measures may include, but are not limited to,
reclaiming disturbed land to enhance golden eagle nesting and foraging
habitat, relocating in suitable habitat any golden eagle nest taken, or
establishing one or more nest sites.
(d) Tenure of permits. The tenure of any permit to take golden eagle
nests is 2 years from the date of issuance, unless a shorter period of
time is prescribed on the face of the permit. Permits may be renewed in
accordance with part 13 of this chapter.
[48 FR 57300, Dec. 29, 1983, as amended at 63 FR 52638, Oct. 1, 1998; 64
FR 50474, Sept. 17, 1999; 81 FR 91550, Dec. 16, 2016]
Sec.22.26 Permits for eagle take that is associated with, but not
the purpose of, an activity.
(a) Purpose and scope. This permit authorizes take of bald eagles
and golden eagles where the take is compatible with the preservation of
the bald eagle and the golden eagle; is necessary to
[[Page 145]]
protect an interest in a particular locality; is associated with, but
not the purpose of, the activity; and cannot practicably be avoided.
(b) Definitions. In addition to the definitions contained in part 10
of this subchapter, and Sec.22.3, the following definition applies in
this section:
Eagle means a live bald eagle (Haliaeetus leucocephalus), live
golden eagle (Aquila chrysaetos), a bald eagle egg, or a golden eagle
egg.
(c) Permit conditions. In addition to 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 comply with all avoidance, minimization, or other
mitigation measures specified in the terms of your permit to mitigate
for the detrimental effects on eagles, including indirect and cumulative
effects, of the permitted take.
(i) Compensatory mitigation scaled to project impacts will be
required for any permit authorizing take that would exceed the
applicable eagle management unit take limits. Compensatory mitigation
for this purpose must ensure the preservation of the affected eagle
species by reducing another ongoing form of mortality by an amount equal
to or greater than the unavoidable mortality, or increasing the eagle
population by an equal or greater amount.
(ii) Compensatory mitigation may also be required in the following
circumstances:
(A) When cumulative authorized take, including the proposed take,
would exceed 5 percent of the local area population; or
(B) When available data indicate that cumulative unauthorized
mortality would exceed 10 percent of the local area population.
(iii) All required compensatory mitigation must:
(A) Be determined based on application of all practicable avoidance
and minimization measures;
(B) Be sited within the same eagle management unit where the
permitted take will occur unless the Service has reliable data showing
that the population affected by the take includes individuals that are
reasonably likely to use another eagle management unit during part of
their seasonal migration;
(C) Use the best available science in formulating and monitoring the
long-term effectiveness of mitigation measures and use rigorous
compliance and effectiveness monitoring and evaluation to make certain
that mitigation measures achieve their intended outcomes, or that
necessary changes are implemented to achieve them;
(D) Be additional and improve upon the baseline conditions of the
affected eagle species in a manner that is demonstrably new and would
not have occurred without the compensatory mitigation (voluntary actions
taken in anticipation of meeting compensatory mitigation requirements
for an eagle take permit not yet granted may be credited toward
compensatory mitigation requirements);
(E) Be durable and, at a minimum, maintain its intended purpose for
as long as impacts of the authorized take persist; and
(F) Include mechanisms to account for and address uncertainty and
risk of failure of a compensatory mitigation measure.
(iv) Compensatory mitigation may include conservation banking, in-
lieu fee programs, and other third-party mitigation projects or
arrangements. Permittee-responsible mitigation may be approved provided
the permittee submits verifiable documentation sufficient to demonstrate
that the standards set forth in paragraph (c)(1)(iii) of this section
have been met and the alternative means of compensatory mitigation will
offset the permitted take to the degree that is compatible with the
preservation of eagles.
(2) Monitoring. (i) You may be required to monitor impacts to eagles
from the permitted activity for up to 3 years after completion of the
activity or as set forth in a separate management plan, as specified on
your permit. For ongoing activities and enduring site features that will
likely continue to cause take, periodic monitoring will
[[Page 146]]
be required for as long as the data are needed to assess impacts to
eagles.
(ii) The frequency and duration of required monitoring will depend
on the form and magnitude of the anticipated take and the objectives of
associated avoidance, minimization, or other mitigation measures, not to
exceed what is reasonable to meet the primary purpose of the monitoring,
which is to provide data needed by the Service regarding the impacts of
the activity on eagles for purposes of adaptive management. You must
coordinate with the Service to develop project-specific monitoring
protocols. If the Service has officially issued or endorsed, through
rulemaking procedures, monitoring protocols for the activity that will
take eagles, you must follow them, unless the Service waives this
requirement. Your permit may require that the monitoring be conducted by
qualified, independent third parties that report directly to the
Service.
(3) You must submit an annual report summarizing the information you
obtained through monitoring to the Service every year that your permit
is valid and for up to 3 years after completion of the activity or
termination of the permit, as specified in your permit. The Service will
make eagle mortality information from annual reports available to the
public.
(4) While the permit is valid and for up to 3 years after it
expires, you must allow Service personnel, or other qualified persons
designated by the Service, access to the areas where eagles are likely
to be affected, at any reasonable hour, and with reasonable notice from
the Service, for purposes of monitoring eagles at the site(s).
(5) The authorizations granted by permits issued under this section
apply only to take that results from activities conducted in accordance
with the description contained in the permit application and the terms
of the permit. If the permitted activity changes after a permit is
issued, you must immediately contact the Service to determine whether a
permit amendment is required in order to retain take authorization.
(6) You must contact the Service immediately upon discovery of any
unanticipated take.
(7) Additional conditions for permits with durations longer than 5
years--(i) Monitoring. Monitoring to assess project impacts to eagles
and the effectiveness of avoidance and minimization measures must be
conducted by qualified, independent third parties, approved by the
Service. Monitors must report directly to the Service and provide a copy
of the reports and materials to the permittee.
(ii) Adaptive management. The permit will specify circumstances
under which modifications to avoidance, minimization, or compensatory
mitigation measures or monitoring protocols will be required, which may
include, but are not limited to: Take levels, location of take, and
changes in eagle use of the activity area. At a minimum, the permit must
specify actions to be taken if take approaches or reaches the amount
authorized and anticipated within a given time frame. Adaptive
management terms in a permit will include review periods of no more than
5 years and may require prompt action(s) upon reaching specified
conditions at any time during the review period.
(iii) Permit reviews. At no more than 5 years from the date a permit
that exceeds 5 years is issued, and at least every 5 years thereafter,
the permittee will compile, and submit to the Service, eagle fatality
data or other pertinent information that is site-specific for the
project, as required by the permit. The Service will review this
information, as well as information provided directly to the Service by
independent monitors, to determine whether:
(A) The permittee is in compliance with the terms and conditions of
the permit and has implemented all applicable adaptive management
measures specified in the permit; and
(B) Eagle take does not exceed the amount authorized to occur within
the period of review.
(iv) Actions to be taken based on the permit review. (A) In
consultation with the permittee, the Service will update fatality
predictions, authorized take levels and compensatory mitigation for
future years, taking into account the observed levels of take based on
approved protocols for monitoring and estimating total take, and, if
applicable,
[[Page 147]]
accounting for changes in operations or permit conditions pursuant to
the adaptive management measures specified in the permit or made
pursuant to paragraphs (c)(7)(iv)(B) through (D) of this section.
(B) If authorized take levels for the period of review are exceeded
in a manner or to a degree not addressed in the adaptive management
conditions of the permit, based on the observed levels of take using
approved protocols for monitoring and estimating total take, the Service
may require additional actions including but not limited to:
(1) Adding, removing, or adjusting avoidance, minimization, or
compensatory mitigation measures;
(2) Modifying adaptive management conditions;
(3) Modifying monitoring requirements; and
(4) Suspending or revoking the permit in accordance with part 13 of
this subchapter B.
(C) If the observed levels of take, using approved protocols for
monitoring and estimating total take, are below the authorized take
levels for the period of review, the Service will proportionately revise
the amount of compensatory mitigation required for the next period of
review, including crediting excess compensatory mitigation already
provided by applying it to the next period of review.
(D) Provided the permittee implements all required actions and
remains compliant with the terms and conditions of the permit, no other
action is required. However, with consent of the permittee, the Service
may make additional changes to a permit, including appropriate
modifications to avoidance and/or minimization measures or monitoring
requirements. If measures are adopted that have been shown to be
effective in reducing risk to eagles, appropriate adjustments will be
made in fatality predictions, take estimates, and compensatory
mitigation.
(v) Fees. For permits with terms longer than 5 years, an
administration fee of $8,000 will be assessed every 5 years for permit
review.
(8) The Service may amend, suspend, or revoke a permit issued under
this section if new information indicates that revised permit conditions
are necessary, or that suspension or revocation is necessary, to
safeguard local or regional eagle populations. This provision is in
addition to the general criteria for amendment, suspension, and
revocation of Federal permits set forth in Sec. Sec.13.23, 13.27, and
13.28 of this chapter.
(9) Notwithstanding the provisions of Sec.13.26 of this chapter,
you remain responsible for all outstanding monitoring requirements and
mitigation measures required under the terms of the permit for take that
occurs prior to cancellation, expiration, suspension, or revocation of
the permit.
(10) You must promptly notify the Service of any eagle(s) found
injured or dead at the activity site, regardless of whether the injury
or death resulted from your activity. The Service will determine the
disposition of such eagles.
(11) You are responsible for ensuring that the permitted activity is
in compliance with all Federal, Tribal, State, and local laws and
regulations applicable to eagles.
(d) Applying for an eagle take permit. (1) You are advised to
coordinate with the Service as early as possible for advice on whether a
permit is needed and for technical assistance in assembling your permit
application package. The Service may provide guidance on developing
complete and adequate application materials and will determine when the
application form and materials are ready for submission.
(2) Your application must consist of a completed application Form 3-
200-71 and all required attachments. Send applications to the Regional
Director of the Region in which the take would occur--Attention:
Migratory Bird Permit Office. You can find the current addresses for the
Regional Directors in Sec.2.2 of subchapter A of this chapter.
(3) Except as set forth in paragraph (d)(3)(ii) of this section, an
applicant must coordinate with the Service to develop project-specific
monitoring and survey protocols, take probability models, and any other
applicable data quality standards, and include in the application all
the data thereby obtained.
[[Page 148]]
(i) If the Service has officially issued or endorsed, through
rulemaking procedures, survey, modeling, or other data quality standards
for the activity that will take eagles, you must follow them and include
in your application all the data thereby obtained, unless the Service
waives this requirement for your application.
(ii) Applications for eagle incidental take permits for wind
facilities must include pre-construction eagle survey information
collected according to the following standards, unless exceptional
circumstances apply and survey requirements can be modified to
accommodate those circumstances after consultation with, and written
concurrence by, the Service:
(A) Surveys must consist of point-based recordings of bald eagle and
golden eagle flight activity (minutes of flight) within a three-
dimensional cylindrical plot (the sample plot). The radius of the sample
plot is 2,625 feet (ft) (800 meters (m)), and the height above ground
level must be either 656 ft (200 m) or 82 ft (25 m) above the maximum
blade reach, whichever is greater.
(B) The duration of the survey for each visit to each sample plot
must be at least 1 hour.
(C) Sampling must include at least 12 hours per sample plot per year
for 2 or more years. Each sample plot must be sampled at least once per
month, and the survey start time for a sampling period must be selected
randomly from daylight hours,\1\ unless the conditions in paragraph
(d)(3)(ii)(F) of this section apply.
---------------------------------------------------------------------------
\1\ Daylight hours are defined as the hours between sunrise and
sunset.
---------------------------------------------------------------------------
(D) Sampling design must be spatially representative of the project
footprint,\2\ and spatial coverage of sample plots must include at least
30 percent of the project footprint. Sample plot locations must be
determined randomly, unless the conditions in paragraph (d)(3)(ii)(F) of
this section apply.
---------------------------------------------------------------------------
\2\ The project footprint is the minimum-convex polygon that
encompasses the wind-project area inclusive of the hazardous area around
all turbines and any associated utility infrastructure, roads, etc.
---------------------------------------------------------------------------
(E) The permit application package must contain the following:
(1) Coordinates of each sample point in decimal degrees (specify
projection/datum).
(2) The radius and height of each sample plot.
(3) The proportion of each three-dimensional sample plot that was
observable from the sample point for each survey.
(4) Dates, times, and weather conditions for each survey, to include
the time surveys at each sample point began and ended.
(5) Information for each survey on the number of eagles by species
observed (both in flight and perched), and the amount of flight time
(minutes) that each was in the sample plot area.
(6) The number of proposed turbines and their specifications,
including brand/model, rotor diameter, hub height, and maximum blade
reach (height), or the range of possible options.
(7) Coordinates of the proposed turbine locations in decimal degrees
(specify projection/datum), including any alternate sites.
(F) Stratified-random sampling (a sample design that accounts for
variation in eagle abundance by, for example, habitat, time of day,
season) will often provide more robust, efficient sampling. Random
sampling with respect to time of day, month, or project footprint can be
waived if stratification is determined to be a preferable sampling
strategy after consultation and approval in advance with the Service.
(iii) Application of the Service-endorsed data quality standards of
paragraphs (d)(3)(i) and (ii) of this section may not be needed if:
(A) The Service has data of sufficient quality to predict the likely
risk to eagles;
(B) Expediting the permit process will benefit eagles; or
(C) The Service determines the risk to eagles from the activity is
low enough relative to the status of the eagle population based on:
(1) Physiographic and biological factors of the project site; or
(2) The project design (i.e., use of proven technology, micrositing,
etc.).
[[Page 149]]
(e) Evaluation of applications. In determining whether to issue a
permit, we will evaluate:
(1) Whether take is likely to occur based on the magnitude and
nature of the impacts of the activity.
(2) Whether the take is:
(i) Compatible with the preservation of the bald eagle and the
golden eagle, including consideration of indirect effects and the
cumulative effects of other permitted take and other additional factors
affecting eagle populations;
(ii) Associated with the permanent loss of an important eagle use
area;
(iii) Necessary to protect a legitimate interest in a particular
locality; and
(iv) Associated with, but not the purpose of, the activity.
(3) Whether the cumulative authorized take, including the proposed
take, would exceed 5 percent of the local area population.
(4) Any available data indicating that unauthorized take may exceed
10 percent of the local area population.
(5) Whether the applicant has proposed all avoidance and
minimization measures to reduce the take to the maximum degree
practicable relative to the magnitude of the impacts to eagles.
(6) Whether the applicant has proposed compensatory mitigation
measures that comply with standards set forth under paragraph (c)(1) of
this section to compensate for remaining unavoidable impacts after all
appropriate and practicable avoidance and minimization measures have
been applied.
(7) Whether issuing the permit would preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, according to the following prioritization order:
(i) Safety emergencies;
(ii) Increased need for traditionally practiced Native American
tribal religious use that requires taking eagles from the wild;
(iii) Non-emergency activities necessary to ensure public health and
safety; and
(iv) Other interests.
(8) For projects that are already operational and have taken eagles
without a permit, whether such past unpermitted eagle take has been
resolved or is in the process of resolution with the Office of Law
Enforcement through settlement or other appropriate means.
(9) Any additional factors that may be relevant to our decision
whether to issue the permit, including, but not limited to, the cultural
significance of a local eagle population.
(f) Required determinations. Before we issue a permit, we must find
that:
(1) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted take
and additional factors affecting the eagle populations within the eagle
management unit and the local area population, are compatible with the
preservation of bald eagles and golden eagles.
(2) The taking is necessary to protect an interest in a particular
locality.
(3) The taking is associated with, but not the purpose of, the
activity.
(4) The applicant has applied all appropriate and practicable
avoidance and minimization measures to reduce impacts to eagles.
(5) The applicant has applied all appropriate and practicable
compensatory mitigation measures, when required, pursuant to paragraph
(c) of this section, to compensate for remaining unavoidable impacts
after all appropriate and practicable avoidance and minimization
measures have been applied.
(6) Issuance of the permit will not preclude issuance of another
permit necessary to protect an interest of higher priority as set forth
in paragraph (e)(7) of this section.
(7) Issuance of the permit will not interfere with an ongoing civil
or criminal action concerning unpermitted past eagle take at the
project.
(g) We may deny issuance of a permit if we determine that take is
not likely to occur.
(h) Permit duration. The duration of each permit issued under this
section will be designated on its face and will be based on the duration
of the proposed activities, the period of time for
[[Page 150]]
which take will occur, the level of impacts to eagles, and the nature
and extent of mitigation measures incorporated into the terms and
conditions of the permit. A permit for incidental take will not exceed
30 years.
(i) Applicants for eagle incidental take permits who submit a
completed permit application by July 14, 2017 may elect to apply for
coverage under the regulations that were in effect prior to January 17,
2017 provided that the permit application satisfies the permit
application requirements of the regulations in effect prior to January
17, 2017. If the Service issues a permit to such applicants, all of the
provisions and conditions of the regulations that were in effect prior
to January 17, 2017 will apply.
[74 FR 46877, Sept. 11, 2009, as amended at 79 FR 73725, Dec. 9, 2013;
81 FR 8004, Feb. 17, 2016; 81 FR 91551, Dec. 16, 2016]
Sec.22.27 Removal of eagle nests.
(a) Purpose and scope. (1) A permit may be issued under this section
to authorize removal or relocation of:
(i) An in-use or alternate nest where necessary to alleviate an
existing safety emergency, or to prevent a rapidly developing safety
emergency that is otherwise likely to result in bodily harm to humans or
eagles while the nest is still in use by eagles for breeding purposes;
(ii) An alternate nest when the removal is necessary to ensure
public health and safety;
(iii) An alternate nest, or an in-use nest prior to egg-laying, that
is built on a human-engineered structure and creates, or is likely to
create, a functional hazard that renders the structure inoperable for
its intended use; or
(iv) An alternate nest, provided the take is necessary to protect an
interest in a particular locality and the activity necessitating the
take or the mitigation for the take will, with reasonable certainty,
provide a net benefit to eagles.
(2) Where practicable and biologically warranted, the permit may
require a nest to be relocated, or a substitute nest provided, in a
suitable site within the same territory to provide a viable nesting
option for eagles within that territory, unless such relocation would
create a threat to safety. However, we may issue permits to remove nests
that we determine cannot or should not be relocated. The permit may
authorize take of eggs or nestlings if present. The permit may also
authorize the take of adult eagles (e.g., disturbance or capture)
associated with the removal or relocation of the nest.
(3) A permit may be issued under this section to cover multiple nest
takes over a period of up to 5 years, provided the permittee complies
with comprehensive measures developed in coordination with the Service
to minimize the need to remove nests and specified as conditions of the
permit.
(4) This permit does not authorize intentional, lethal take of
eagles.
(b) Conditions. (1) The permit does not authorize take of in-use
nests except:
(i) For safety emergencies as provided under paragraph (a)(1)(i) of
this section; or
(ii) Prior to egg-laying if the in-use nest is built on a human-
engineered structure and meets the provisions set forth in paragraph
(a)(1)(iii) of this section.
(2) When an in-use nest must be removed under this permit, any take
of nestlings or eggs must be conducted by a Service-approved, qualified
agent. All nestlings and viable eggs must be immediately transported to
foster/recipient nests or a rehabilitation facility permitted to care
for eagles, as directed by the Service, unless the Service waives this
requirement.
(3) Possession of the nest for any purpose other than removal or
relocation is prohibited without a separate permit issued under this
part authorizing such possession.
(4) You must submit a report consisting of a summary of the
activities conducted under the permit to the Service within 30 days
after the permitted take occurs, except that for programmatic permits,
you must report each nest removal within 10 days after the take and
submit an annual report by January 31 containing all the information
required in Form 3-202-16 for activities conducted during the preceding
calendar year.
(5) You may be required to monitor the area and report whether
eagles attempt to build or occupy another nest
[[Page 151]]
at another site in the vicinity for the duration specified in the
permit.
(6) You may be required under the terms of the permit to harass
eagles from the area following the nest removal when the Service
determines it is necessary to prevent eagles from re-nesting in the
vicinity.
(7) You must comply with all avoidance, minimization, or other
mitigation measures specified in the terms of your permit to mitigate
for the detrimental effects on eagles, including indirect and cumulative
effects, of the permitted take.
(8) Compensatory mitigation scaled to project impacts will be
required for any permit authorizing take that would exceed the
applicable eagle management unit take limits. Compensatory mitigation
must conform to the standards set forth at Sec.22.26(c)(1)(iii).
Compensatory mitigation may also be required in the following
circumstances:
(i) When cumulative authorized take, including the proposed take,
would exceed 5 percent of the local area population;
(ii) When available data indicate that cumulative unauthorized
mortality would exceed 10 percent of the local area population; or
(iii) If the permitted activity does not provide a net benefit to
eagles, you must apply appropriate and practicable compensatory
mitigation measures as specified in your permit to provide a net benefit
to eagles scaled to the effects of the nest removal.
(9) The Service may amend or revoke a programmatic permit issued
under this section if new information indicates that revised permit
conditions are necessary, or that suspension or revocation is necessary,
to safeguard local or regional eagle populations.
(10) Notwithstanding the provisions of Sec.13.26 of this
subchapter, you remain responsible for all outstanding monitoring
requirements and mitigation measures required under the terms of the
permit for take that occurs prior to cancellation, expiration,
suspension, or revocation of the permit.
(11) You are responsible for ensuring that the permitted activity is
in compliance with all Federal, Tribal, State, and local laws and
regulations applicable to eagles.
(c) Applying for a permit to take eagle nests. (1) If the take is
necessary to address an immediate threat to human or eagle safety,
contact your local U.S. Fish and Wildlife Service Regional Migratory
Bird Permit Office (http://www.fws.gov/permits/mbpermits/addresses.html)
at the earliest possible opportunity to inform the Service of the
emergency.
(2) Your application must consist of a completed application Form 3-
200-72 and all required attachments. Send applications to the Regional
Director of the Region in which the disturbance would occur--Attention:
Migratory Bird Permit Office. You can find the current addresses for the
Regional Directors in Sec.2.2 of subchapter A of this chapter.
(d) Evaluation of applications. In determining whether to issue a
permit, we will evaluate:
(1) Whether the activity meets the requirements of paragraph (a)(1)
of this section;
(2) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted take
and additional factors affecting eagle populations;
(3) Whether there is a practicable alternative to nest removal that
will protect the interest to be served;
(4) Whether issuing the permit would preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, as set forth in paragraph (e)(5) of this section;
(5) For take that is not necessary to alleviate an immediate safety
emergency, whether suitable nesting and foraging habitat is available to
accommodate eagles displaced by the nest removal; and
(6) Any additional factors that may be relevant to our decision
whether to issue the permit, including, but not limited to, the cultural
significance of a local eagle population.
(e) Required determinations. Before issuing a permit under this
section, we must find that:
(1) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted take
and additional
[[Page 152]]
factors affecting eagle populations, are compatible with the
preservation of the bald eagle or the golden eagle.
(2) For alternate nests:
(i) The take is necessary to ensure public health and safety;
(ii) The nest is built on a human-engineered structure and creates,
or is likely to create, a functional hazard that renders the structure
inoperable for its intended use; or
(iii) The take is necessary to protect an interest in a particular
locality, and the activity necessitating the take or the mitigation for
the take will, with reasonable certainty, provide a net benefit to
eagles.
(3) For in-use nests prior to egg-laying, the nest is built on a
human-engineered structure and creates, or is likely to create, a
functional hazard that renders the structure inoperable for its intended
use.
(4) For in-use nests, the take is necessary to alleviate an existing
safety emergency, or to prevent a rapidly developing safety emergency
that is otherwise likely to result in bodily harm to humans or eagles
while the nest is still in use by eagles for breeding purposes.
(5) There is no practicable alternative to nest removal that would
protect the interest to be served.
(6) Issuing the permit will not preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, according to the following prioritization order:
(i) Safety emergencies;
(ii) Increased need for traditionally practiced Native American
tribal religious use that requires taking eagles from the wild;
(iii) Non-emergency activities necessary to ensure public health and
safety;
(iv) Resource development or recovery operations (under Sec.22.25,
for golden eagle nests only); and
(v) Other interests.
(f) Tenure of permits. The tenure of any permit to take eagle nests
under this section is set forth on the face of the permit and will not
be longer than 5 years.
[74 FR 46877, Sept. 11, 2009, as amended at 81 FR 91553, Dec. 16, 2016]
Sec.22.28 Permits for bald eagle take exempted under the Endangered
Species Act.
(a) Purpose and scope. This permit authorizes take of bald eagles
(Haliaeetus leucocephalus) in compliance with the terms and conditions
of a section 7 incidental take statement under the Endangered Species
Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.; 50 CFR 402,
Subpart B) issued prior to the effective date of 50 CFR 22.26.
(b) Issuance criteria. Before issuing you a permit under this
section, we must find that you are in full compliance with the terms and
conditions contained in the applicable ESA incidental take statement
issued prior to the effective date of 50 CFR 22.26 for take of eagles,
based on your certification and any other relevant information available
to us, including, but not limited to, monitoring or progress reports
required pursuant to your incidental take statement. The terms and
conditions of the Eagle Act permit under this section, including any
modified terms and conditions, must be compatible with the preservation
of the bald eagle.
(c) Permit conditions. (1) You must comply with all terms and
conditions of the incidental take statement issued under section 7 of
the ESA, or modified measures specified in the terms of your permit
issued under this section. At permit issuance or at any time during its
tenure, the Service may modify the terms and conditions that were
included in your ESA incidental take statement, based on one or more of
the following factors:
(i) You requested and received modified measures because some of the
requirements for take authorization under the ESA were not necessary for
take authorization under the Eagle Act;
(ii) The amount or extent of incidental take authorized under the
take statement is exceeded;
(iii) New information reveals effects of the action that may affect
eagles in a manner or to an extent not previously considered, and
requires modification of the terms and conditions to ensure the
preservation of the bald eagle or the golden eagle; or
[[Page 153]]
(iv) The activity will be modified by the permittee in a manner that
causes effects to eagles that were not previously considered and which
requires modification of the terms and conditions in the incidental take
statement in order to ensure the preservation of the bald eagle or the
golden eagle.
(2) During any period when the eagles covered by your incidental
take statement are listed under the ESA, you must comply with the terms
and conditions of both the incidental take statement and the permit
issued under this section.
(d) Permit duration. The permit will be valid until the action that
will take eagles, as described in the incidental take statement or
modified to condition the permit issued under this section, is
completed, as long as the permittee complies with the terms and
conditions of the permit, including any modified terms and conditions.
(e) Applying for an eagle take permit. (1) Your application must
consist of a copy of the applicable section 7 incidental take statement
issued pursuant to the Endangered Species Act (ESA), and a signed
certification that you are in full compliance with all terms and
conditions of the ESA incidental take statement.
(2) If you request reevaluation of the terms and conditions required
under your previously granted ESA incidental take statement for eagles,
you must include a description of the modifications you request, and an
explanation for why you believe the original conditions or measures are
not reasonably justified to offset the detrimental impact of the
permitted activity on eagles.
(3) Send completed permit applications to the Regional Director of
the Region in which the disturbance would occur--Attention: Migratory
Bird Permit Office. You can find the current addresses for the Regional
Directors in Sec.2.2 of subchapter A of this chapter.
[73 FR 29083, May 20, 2008; 74 FR 46879, Sept. 11, 2009]
Subpart D_Depredation Control Orders on Golden Eagles
Sec.22.31 Golden eagle depredations control order on request
of Governor of a State.
(a) Whenever the Governor of any State requests permission to take
golden eagles to seasonally protect domesticated flocks and herds in
such State, the Director shall make an investigation and if he
determines that such taking is necessary to and will seasonally protect
domesticated flocks and herds in such States he shall authorize such
taking in whatever part or parts of the State and for such periods as he
determines necessary to protect such interests.
(b) Requests from the Governor of a State to take golden eagles to
seasonally protect domesticated flocks and herds must be submitted in
writing to the Director listing the periods of time during which the
taking of such birds is recommended, and including a map of the State
indicating the boundaries of the proposed area of taking. Such requests
should include a statement of the facts and the source of such facts
that in the Governor's opinion justifies the request. After a decision
by the Director, the Governor will be advised in writing concerning the
request and a notice will be published in the Federal Register.