[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Proposed Rules]
[Pages 59710-59713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20593]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AI97


Migratory Bird Permits; Educational Use Permits

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: We are soliciting public comments to help us develop permit 
regulations governing possession of live migratory birds and eagles for 
educational use.

DATES: Written comments should be submitted by December 12, 2005, to 
the address below.

ADDRESSES: You may mail or deliver comments to the Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North 
Fairfax Drive, MBSP 4107, Arlington, Virginia 22203. You also may 
submit comments via the Internet to: [email protected]. See 
SUPPLEMENTARY INFORMATION for file formats and other information about 
electronic filing.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service; (703) 358-
1714.

SUPPLEMENTARY INFORMATION: Please submit Internet comments as an ASCII 
file avoiding the use of special characters and any form of encryption. 
Please also include your name and return address in your Internet 
message. If you do not receive a confirmation that we have received 
your message, contact us directly at (703) 358-1714.

Background

    This scoping notice is intended to help the U.S. Fish and Wildlife 
Service (the Service) gather information and suggestions about current 
practices and public views regarding educational use of live migratory 
birds and eagles, in anticipation of drafting new permit regulations 
for possession of migratory birds and eagles for educational purposes. 
Feedback from this notice will enable us to propose regulations that 
will already have benefited from input from the regulated community. 
(The proposed regulations will then be subject to the standard public 
notice and comment for purposes of crafting final regulations.)
    The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) 
prohibits possession of any bird listed under treaties between the 
United States and Canada, Mexico, Japan, and Russia. Birds protected by 
the MBTA are referred to as ``migratory birds.'' In order to possess 
migratory birds or their parts or feathers for use in educational 
programs, you must obtain a permit from the Service (unless you are an 
institution exempted from the permit requirement under 50 CFR 
21.12(b)). The Service issues such permits to authorize educational 
programs and exhibits that use nonreleasable or captive-bred migratory 
birds to teach people about migratory bird conservation and ecology. 
Permits are also required to possess migratory bird parts and feathers 
for educational use; however, at this time, we seek input only on 
issues pertaining to possession of live migratory birds and eagles for 
educational use.
    Currently, because no regulations pertain specifically to 
educational use permits, educational activities that involve migratory 
birds are authorized by issuance of a special purpose permit under 50 
CFR 21.27. That miscellaneous permit category is used to authorize 
activities not specifically addressed in existing migratory bird permit 
regulations. In the absence of specific regulations addressing 
educational activities using migratory birds, the terms and 
requirements governing educational activities using migratory birds are 
currently promulgated via a list of standard conditions that are issued 
with each permit. Approximately 1200 permits for possession of live 
birds (including eagles) for educational use are currently active.
    In a future rulemaking, we intend to propose a new permit 
regulation that will incorporate many of the longstanding policies and 
practices that are the basis of the current special purpose--education 
permit conditions. However, those conditions have never been the 
subject of notice and comment and may benefit from revision as a result 
of public input. Also, the special purpose--education permit conditions 
are not specific enough to provide sufficient guidance to the Service 
or to permittees to address many of the issues that arise in the 
regulation of possession of migratory birds for educational purposes. 
By creating a new permit category specifically for this purpose, the 
Service hopes to bring specificity and clarity to this area of 
migratory bird use.
    As part of that same rulemaking, we intend to revise permit 
regulations governing exhibition of bald and golden eagles for 
educational purposes. Eagle permits are addressed through separate 
regulations from those governing educational use of other migratory 
birds because, in addition to the MBTA, eagles are further protected by 
the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668), which 
contains different, more restrictive provisions than the MBTA. We 
anticipate that the new proposed eagle exhibition regulations will 
incorporate by reference the regulations proposed for non-eagle 
migratory bird educational use, but with some variations that will be 
necessary to comply with the BGEPA.
    Despite the differences between the MBTA and the BGEPA, many of the 
same issues arise in developing educational use regulations for eagles 
as for other migratory birds. Most of the questions we pose in this 
scoping notice are not addressed directly by either the MBTA or the 
BGEPA. For this reason, we are soliciting input regarding both eagles 
and other migratory birds on each question, except where specifically 
noted.
    Regarding what the educational use permits will or will not 
authorize, some longstanding Service positions are well-established, 
based on traditional and/or existing precedents, while other issues

[[Page 59711]]

are less settled. For example, the Service's current and historical 
policy is that birds protected by the MBTA, including eagles, may not 
be taken from the wild for educational purposes. (We distinguish 
between educational purposes and scientific purposes. We issue permits 
for take of migratory birds for scientific purposes, under 50 CFR 21.23 
(migratory birds) and 50 CFR 22.21 (eagles).) Migratory birds held 
under educational use permits must be either captive-bred or 
nonreleasable. In this context, nonreleasable designates a bird that 
was taken from the wild because of injury, illness, or some other 
factor that rendered the bird unlikely, even after appropriate 
rehabilitative treatment, to survive in the wild should it be released. 
Because sufficient numbers of nonreleasable and captive-bred migratory 
birds are available to meet the needs of educators, we do not believe 
that allowing birds to be taken from the wild for this purpose would be 
consistent with the MBTA's objective to conserve wild populations of 
birds.
    Another established Service policy concerning educational use of 
migratory birds is the requirement that any program, exhibition, or 
display using those birds must include a substantive ecological, 
biological, and/or conservation message. Migratory bird possession must 
be consistent with the mission to conserve and protect wild populations 
of migratory birds. Thus, exhibition of such birds must be accompanied 
by a public message that explains the wild nature of birds, their 
ecological needs and/or conservation status, and their status as a 
public trust resource. Absent such messages, the public may assume that 
birds can be kept for personal use or entertainment. Demand for such 
birds would likely grow--with potentially negative consequences for 
wild populations, including black market trade, pressure to change 
regulations to authorize take from the wild, and a degraded status 
through the public's growing perception of them as pets, rather than 
wildlife.
    Commercial trade was a large factor in the decline of the nation's 
migratory bird resource and the subsequent enactment of the MBTA in 
1918. Subsequently, we have prohibited most commercial use of birds. 
Today, we authorize some commercial use, including propagation and sale 
of captive-bred raptors, waterfowl, and game birds. And, we have 
permitted a number of for-profit educational migratory bird programs 
that include ecological and or conservation education as a meaningful 
component of their programs. However, the use of eagles in educational 
formats has been limited by law to nonprofit entities because the BGEPA 
restricts eagle exhibition permits to certain ``public'' (nonprofit) 
institutions (see 9 below).
    Product endorsement is prohibited under the current special purpose 
permit. We believe that endorsement of commercial products or services 
is not an acceptable use of migratory birds because such endorsement 
tends to obscure or even negate any educational component, compromising 
the Service's mission to protect migratory birds as wildlife.
    Within the framework discussed above, the regulation of migratory 
bird possession for educational use entails a number of unresolved and/
or novel issues on which we seek input from the public. Comments are 
particularly sought concerning the following issues:
    (1) Facilities. We seek suggestions regarding criteria for housing 
birds under an educational use permit. We wish to adopt standards that 
ensure humane treatment of the birds but which are flexible enough to 
reasonably accommodate different circumstances. Should caging 
dimensions be based on whether birds are flighted or non-flighted? 
Among flighted birds, should the rule require different caging 
dimensions based on whether the birds are regularly trained or 
exercised outside of their enclosures, or not? Should the regulation 
stipulate that certain materials be used or avoided in constructing 
enclosures?
    (2) Adequate experience. What level of experience should an 
applicant be required to have in order to qualify a permit to hold live 
birds for educational use? The Service is considering establishing a 
minimal hourly requirement for hands-on experience with the type(s) of 
species that the educator will be using in his or her programs. What 
type(s) of hand-on experience should count towards this requirement 
(e.g., conducting educational programs as a subpermittee under 
another's permit, working as a migratory bird rehabilitator, working in 
a zoo)? How many hours of hands-on experience should be adequate to 
qualify for a permit? Need the applicant have worked with each specific 
species that he or she intends to use for their programs? What kind of 
certification should be required to demonstrate that the applicant has 
met this requirement?
    Should the regulation set forth different qualifying criteria 
between those who work with flighted and non-flighted birds? Or is it 
more important to develop criteria based on whether birds will be held 
on the glove during programs versus displayed in enclosures?
    What type and amount of experience should a person be required to 
have to qualify to hold a live eagle under an eagle exhibition permit? 
Permits to possess eagles for education/exhibition are limited to 
certain types of public institutions (see Item 9). As with 
other migratory birds, however, additional criteria must be met in 
order to obtain a permit to possess eagles for education, including the 
requirement that the applicant have sufficient experience handling and 
presenting programs with the type of species that will be held under 
the permit. Eagles are distinct from other raptors because of their 
size, strength, and temperament. Combined, these characteristics would 
appear to demand a greater degree of expertise from their handlers in 
order to ensure the safety of the handler, the public and the birds 
themselves. How much and what type(s) of additional experience should 
be required before a person qualifies to hold a live eagle under an 
eagle exhibition permit?
    (3) Audience Contact. How should the regulations address audience 
contact with migratory birds and eagles? In November 2000, the Service 
published a Request for Comments on a variety of issues related to 
falconry education facilities (65 FR 69726). Based on the response to 
that notice, and on other information, it is our current policy to 
allow members of the public without permits to hold trained, captive-
bred falconry birds on the glove in falconry education programs that 
adhere to certain conditions developed to ensure that the birds are 
safely handled (i.e., the programs are conducted by a permitted general 
or master class falconer, the birds are held under educational use (as 
opposed to falconry) permits, sufficient instruction is provided 
regarding safety, activities are conducted at a designated locations, 
among other conditions). How should we treat audience contact with 
birds in more typical educational settings where fewer institutional 
safeguards are in place? Outside of situations where the facility meets 
qualifications to allow individuals to hold falconry birds on the glove 
(as noted above), should all audience contact with live migratory birds 
be prohibited by this regulation?
    (4) Free-flying Birds. The current special purpose--education 
permit is silent as to whether birds may be free-flown at open-area 
venues. A number of avian exhibitors now engage in this practice, 
sometimes using bald and golden eagles. We are soliciting public 
opinion on whether this activity should be permitted under the new 
regulations. How significant are the safety issues inherent in free-
flying birds, both for the

[[Page 59712]]

birds themselves, and for the audience? Can such venues adequately 
convey the required conservation or ecological message? Is the 
educational component lost, or is concern for conservation enhanced by 
the experience of observing free-flying birds? Are alternative 
techniques available that may be less risky which avian trainers could 
employ to fly birds in open settings?
    (5) Commercial Venues. Educators may charge money for programs, but 
may not use migratory birds to endorse any product. Should permittees 
be prohibited from conducting programs at businesses and other 
primarily commercial venues, even if the message is about conservation, 
wildlife biology, and/or ecology and not about product endorsement?
    (6) What Constitutes Conservation Education? Must the presentation 
be strictly about conservation, wildlife biology, and/or ecology? If 
not, how much discussion of conservation education is sufficient to 
justify possession and exhibition? For example, would a 2-minute 
trailer addressing the decline of a species in the wild justify 
authorizing the use of a bird in a 2-hour film about the adventures of 
a clever magpie that performs tricks for children? What criteria should 
the Service use to evaluate whether a permittee's presentation (or film 
or other medium) incorporates sufficient conservation education to 
legitimately provide a conservation benefit? Should migratory birds be 
permitted to be used for entertainment or other purposes as long as 
conservation education requirements also are met?
    (7) Effect on Nonprofit Conservation Education. Will the 
opportunity to make a profit using migratory birds result in fewer 
educators taking their programs to schools and other nonprofit venues, 
with the result that fewer children and other nonpaying audiences will 
be exposed to migratory birds through conservation education? Since 
migratory birds are a public resource, should all permittees be 
required to conduct a minimum number of not-for-profit educational 
programs?
    (8) Limit on Number of Birds. Should the regulations establish a 
numerical limit on the birds an educator may hold? A fixed limit would 
prevent permittees from collecting live birds that they do not use in 
educational programs. However, some larger facilities may be able to 
accommodate greater numbers of birds than others, while continuing to 
use the birds in public programs. For the Service to select a single 
number of birds that would be appropriate for all facilities and venues 
would be difficult. Any maximum number we establish would probably be 
inappropriately large for individual educators with smaller facilities. 
If the regulation does not establish a fixed limit on educational 
birds, then the number of birds a permittee may possess will be set on 
an individual case-by-case basis. What criteria should the Service use 
to determine whether an educator may acquire additional birds? Whether 
we establish an across-the-board limit on how many birds a permittee 
may possess, or we provide for the number to be established on a case-
by-case basis, how should the permit regulation address birds that were 
formerly used in educational programs, but are no longer suitable 
because of age or other conditions?
    (9) Who should qualify as ``public'' under the Bald and Golden 
Eagle Protection Act? This question pertains solely to the regulation 
of eagles. The BGEPA provides that--other than Native Americans, who 
may possess bald and golden eagles for religious use, and falconers--
the only entities who may be granted permits for eagle possession are: 
``public museums, scientific societies, and zoological parks.'' The 
Service has never established regulatory definitions of those terms. 
Instead, we have relied on the regulatory definition of ``public'' 
found in 50 CFR part 10, which applies to all the Service's permit 
programs, not just to migratory bird and/or eagle permit regulations. 
That definition reads as follows:

    Public as used in referring to museums, zoological parks, and 
scientific or educational institutions, refers to such as are open 
to the general public, and are either established, maintained, and 
operated as a governmental service or are privately endowed and 
organized but not operated for profit.

    We have the opportunity to establish regulatory definitions for 
``public museum,'' ``public scientific society,'' and ``public 
zoological park.'' We are not seeking to redefine the definition of 
public found at 50 CFR part 10 because that undertaking would require a 
joint rulemaking process involving all the Service programs to which 
part 10 applies. Rather, we seek to define the three terms ``public 
museum,'' ``public scientific society,'' and ``public zoological park'' 
as part of the eagle permit regulations in 50 CFR part 22. The new 
definitions would apply only to eagle permitting regulations. Because 
an executive agency may never establish regulations that conflict with 
the statute or statutes that provide the authority for the agency's 
actions, the new definitions must be in accordance with the BGEPA's 
intent to protect wild populations of eagles. At the same time, to the 
extent possible, we would like to make the definitions as broad as 
possible within that intent so that the maximum number of otherwise 
qualified individuals are able to use nonreleasable bald and golden 
eagles for conservation education.
    We need to consider that the lawmakers who enacted the BGEPA and 
limited eagle permits to public museums, public scientific societies, 
and public zoological parks likely envisioned that the eagles in 
question would be taken from the wild, as opposed to being 
nonreleasable birds that are already removed from wild populations. 
While the Service cannot revise the BGEPA, we can attempt to define the 
terms ``public museum,'' ``public scientific society,'' and ``public 
zoological park'' in a manner that reasonably accommodates today's 
circumstances without conflicting with the BGEPA's spirit and intent.
    The requirement in the 50 CFR part 10 definition of ``public'' that 
an institution must be privately endowed serves as a form of insurance. 
If an institution were suddenly to suffer from a loss of financial 
support, the endowment would help to insulate the museum's collection--
including its live birds--from neglect, disposal, or abandonment. 
However well meaning this concept may be, we question whether it should 
remain a requirement for obtaining permits to keep eagles for purposes 
of education, in light of the fact that the eagles in question cannot 
humanely be released to the wild and may not otherwise be placed.
    To help us define ``public museum,'' ``public scientific society,'' 
and ``public zoological park,'' we seek public input on the following 
issues:
    9a. Should endowment be a required condition for qualifying as a 
public museum, public scientific society, or public zoological park 
under the BGEPA?
    9b. Should museums, scientific societies, and zoological parks be 
nonprofit in order to be considered ``public'' for purposes of 
obtaining an eagle exhibition permit?
    9c. How many hours should an institution be open to the public in 
order to be considered ``public'' for purposes of obtaining an eagle 
exhibition permit?
    9d. Should accreditation by a respected accrediting body be a 
requirement for public museums, scientific societies, and zoological 
parks, for purposes of obtaining an eagle exhibition permit?

[[Page 59713]]

    We welcome comments on the issues described above and encourage the 
submission of new ideas and suggestions.

Public Comments Solicited

    Interested persons are invited to submit comments on issues related 
to permitting possession and use of migratory birds for educational 
purposes. We request suggestions, materials, recommendations, and 
arguments from the public; permitted educators; avian trainers, 
ornithological organizations; environmental organizations; 
corporations; local, State, Tribal, and Federal agencies; and any other 
interested party. Please ensure that any comments submitted in response 
to this request for comments pertain to issues presented in this 
notice.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review by appointment 
during regular business hours. Individual respondents may request that 
we withhold their home address from the rulemaking record, which we 
will honor to the extent allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

    Authority: The authorities for this notice are the Migratory 
Bird Treaty Act of 1918, as amended (16 U.S.C. 703-712), and the 
Bald and Golden Eagle Protection Act (16 U.S.C. 668a).

    Dated: October 3, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-20593 Filed 10-11-05; 12:36 pm]
BILLING CODE 4310-55-P