[Federal Register Volume 88, Number 105 (Thursday, June 1, 2023)]
[Proposed Rules]
[Pages 35821-35823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11653]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 21 and 22
[Docket No. FWS-HQ-MB-2023-0015; FF09M31000-234-FXMB12320900000]
RIN 1018-BF58
Exhibition of Migratory Birds and Eagles
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: This document advises the public that the U.S. Fish and
Wildlife Service (Service, or we) intends to gather information
necessary to develop a proposed rule for the exhibition of migratory
birds and eagles. We are furnishing this advance notice of proposed
rulemaking to advise other agencies and the public of our intentions
and obtain suggestions and information on the scope of issues to
include in the rulemaking.
DATES: We will consider comments received or postmarked on or before
July 3, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date.
ADDRESSES: You may submit a comment by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
In the Search box, enter FWS-HQ-MB-2023-0015, which is the docket
number for this action. Then click the Search button. On the resulting
page, you may submit a comment by clicking on ``Comment.'' Please
ensure that you have found the correct document before submitting your
comments.
U.S. Mail: Public Comments Processing, Attn: FWS-HQ-MB-
2023-0015, U.S. Fish and Wildlife Service, MS: JAO/3W, 5275 Leesburg
Pike, Falls Church, VA 22041-3803.
We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide.
See Public Comments, below, for more information.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director--
Migratory Birds, telephone: 1-703-358-2606.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service is the Federal agency delegated
with the primary responsibility for managing migratory birds, including
bald eagles and golden eagles. Our authority derives primarily from the
Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703-712
(MBTA), which implements conventions with Great Britain (for Canada),
Mexico, Japan, and the Russian Federation. The MBTA protects certain
migratory birds from take, except as permitted under the MBTA. We
implement the provisions of the MBTA through regulations in parts 10,
13, 20, 21, and 22 of title 50 of the Code of Federal Regulations
(CFR). Regulations pertaining to migratory bird permits are set forth
at 50 CFR part 21.
In addition, the Bald and Golden Eagle Protection Act, 16 U.S.C.
668-668d (Eagle Act), prohibits take of bald eagles and golden eagles
except pursuant to Federal regulations. The Eagle Act authorizes the
Secretary of the Interior to issue regulations to permit the ``taking''
of eagles for various purposes, including the protection of other
interests in any particular locality (16 U.S.C. 668a), provided the
taking is compatible with the preservation of eagles. Regulations
pertaining to eagle permits are set forth at 50 CFR part 22.
The Service currently authorizes the exhibition of migratory birds
under a Special Purpose Possession Live permit (FWS Form 3-200-10c)
issued under the special purpose permit regulations (50 CFR 21.95).
Exhibition of bald eagles and golden eagles currently requires an Eagle
Exhibition Live permit (FWS Form 3-200-14) issued under 50 CFR 22.50.
On September 21, 2010, the Service proposed a permit regulation for the
possession and use of migratory birds in educational programs and
exhibits (75 FR 57413). Comments received on the proposed regulation
were generally supportive. However, the Service did not finalize the
rule due to prioritizing other rulemakings. The Service is now seeking
to reinitiate a rulemaking for migratory bird exhibition and eagle
exhibition. However, enough has changed in the field of exhibition that
the Service is seeking public input before preparing a new proposed
rule.
We intend to propose new migratory bird exhibition regulations to
authorize possession of live, non-releasable or captive-bred migratory
birds for use in teaching people about migratory bird conservation and
ecology. We also anticipate proposal of revisions to regulations
authorizing eagle exhibition (50 CFR 22.50), in particular revisions
for permittees that hold migratory bird exhibition permits or hold USDA
exhibition licenses. The public response we receive in response to this
advance notice of proposed rulemaking will help us develop proposed
regulations that
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provide consistency and clarity in administration of permits for
migratory bird and eagle exhibition. This includes ensuring that
migratory birds, including eagles, are handled and cared for in humane
and healthful conditions and held in a manner consistent with the
protections afforded by the MBTA and Eagle Act.
Currently, the Service requires any individual or entity to obtain
a special purpose permit that authorizes possession of one or more
migratory birds and an eagle exhibition permit to exhibit one or more
eagles. As part of the application process, we review the experience of
the caretaker, bird enclosures, and bird husbandry practices. Each
caretaker (subpermittee) and enclosure are authorized on the permit.
Each bird is authorized on the permit, and a transfer request must be
submitted and approved to receive or transfer a bird. The Service
implemented these practices to ensure the humane care and handling of
migratory birds, as other Federal regulations to ensure the humane care
and handling of migratory birds did not exist at that time.
On February 21, 2023, the U.S. Department of Agriculture's Animal
Care Program (USDA-Animal Care) published in the Federal Register (88
FR 10654) a final rule pertaining to the care of birds, which includes
exhibition of migratory birds. The Service is responsible for the
conservation of migratory birds. USDA-Animal Care is responsible for
the humane care of animals. The Service's Migratory Birds Program and
USDA-Animal Care seek to prevent conflicting regulations and minimize
regulatory burden to exhibitors. The Service requests information and
innovative approaches on how to best regulate the exhibition of
migratory birds and exhibition of eagles, in light of the new USDA
regulations. For simplicity, we use the term ``exhibition'' to refer to
permits authorizing the public display of migratory birds or eagles.
``Exhibition'' includes the activities currently authorized under
Migratory Bird Special Purpose Possession Live (Educational Use)
permits (FWS Form 3-200-10c) as well as Eagle Exhibition permits (FWS
Form 3-200-14).
Regulatory Approach Considered
To balance the roles of USDA-Animal Care and the Service's
Migratory Birds Program, the Service is considering the following
framework. The movement of migratory birds from the wild to exhibition
would be regulated by the Service. The humane care of exhibition birds
would be primarily regulated under the Animal Welfare Act (AWA; 7
U.S.C. 2131 et seq.). To accomplish this, the Service would use an
authorization tool called a regulatory authorization.
The Service has long authorized activities under regulatory
authorizations. The origins of the regulatory authorization ``general
exceptions to permit requirements'' (50 CFR 21.12) can be traced back
as far as 1944. Regulatory authorizations are regulations that
establish eligibility criteria and conditions for the take or
possession of migratory birds by an entity without requiring a permit
to conduct those activities. Regulatory authorizations can include
conditions, recordkeeping, reporting, and inspection requirements but
otherwise have a relatively low administrative burden and require
little to no interaction with the Service. Regulatory authorizations
are most appropriate for situations that have straightforward
eligibility criteria, do not require case-by-case customization of
conditions, and pose a low risk to migratory bird populations. Those
who are eligible for a regulatory authorization must comply with the
required conditions, including records and reporting requirements, and
are subject to enforcement for noncompliance.
Permitting
The Service is considering promulgating a regulatory authorization
clarifying that Service permit is not required to exhibit migratory
birds for AWA license holders. This regulatory authorization could
require additional conditions for migratory birds beyond an AWA
license, but a permit would not be required. If an AWA license is not
required, the Service would continue to authorize exhibition permits
for migratory birds and eagles.
Question 1. What regulatory authorization conditions should the
Service require in addition to AWA license conditions? Regulatory
authorization conditions apply to all migratory bird exhibitors
conducting activities under the regulatory authorization (i.e., all AWA
licensees conducting activities with migratory birds). They are not
customizable to individual situations but may be applied to a subset
(e.g., all exhibitors with a particular species or all exhibitors with
a certain number of birds). These could include handler or trainer
requirements, humane handling or training methods, enclosure and
enrichment requirements, etc. For example, the regulatory authorization
could state: ``migratory birds may not be handled by the general
public'' or ``migratory birds may be held but not otherwise touched by
the general public.''
Question 2. The Service is seeking estimates of how many exhibitors
are not likely to be required to or hold an AWA license. In brief,
these are exhibitors with (1) four or fewer raptors including eagles,
(2) no non-raptor migratory birds, and (3) no other species that
require an AWA license, such as mammals (please see https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/new-bird-rule/awa-standards-for-birds for additional information on USDA's New Bird
Rule). For these exhibitors who do not hold an AWA license, we are also
seeking input on potential changes to the permitting regulations,
including whether the Service should continue using special purpose
permits (under 50 CFR 21.95) for migratory birds or promulgate a new
regulation for migratory bird exhibition. Additionally, should the
Service continue to have separate permits for migratory birds and
eagles, or combine exhibition authorization for migratory birds and
eagles into a single permit?
Placement of Wild Birds in Exhibition
It is important that we maintain our role in reviewing the movement
of birds from the wild to exhibition status. Under the regulatory
authorization and exhibition permits, the Service would continue to
regulate the movement of migratory birds to and from exhibition.
Currently, this movement is primarily through rehabilitation patients
being determined non-releasable and placed with exhibition entities.
The Service is considering continuing the requirement that the transfer
of any wild bird to exhibition must be approved by the Service prior to
transfer. Rarely, but occasionally, it is appropriate for exhibition
birds to be transferred to other permit types or released to the wild.
The Service is considering continuing the requirement that the transfer
from exhibition to another permit type or release to the wild must be
approved by the Service prior to transfer. The Service is also
considering not requiring Service approval of transfers between
exhibitors.
Question 3. Should the Service continue to track transfers between
exhibitors? If so, under what circumstances?
Question 4. The Service is considering being more restrictive in
ensuring wild birds approved for exhibition are suitable for long-term
captivity. Is this an appropriate role for the Service? Improved
understanding of the effects of captivity on migratory birds suggests
that captivity is not humane for many migratory birds,
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especially certain wild birds and injured birds. How should the Service
design the information requested and review of transfer requests to
ensure birds are suitable for exhibition use without being unduly
burdensome to exhibitors or the Service?
Compensation and Breeding
As part of this rulemaking, the Service is considering addressing
two areas for which we frequently receive questions: compensation and
breeding of exhibition birds. Service regulations currently do not
specify whether compensation is authorized for exhibition activities.
The Service is considering specifically authorizing compensation for
exhibition activities, as increased compensation provides more funds to
adequately pay staff and humanely care for birds. We are considering
defining compensation to align with AWA regulations, where compensation
includes payment of program fees, merchandise sales, donations, or any
other economic benefits related to exhibition of migratory birds or
eagles. The Service seeks feedback on this approach.
Question 5. Should there be restrictions on compensation for
exhibition, and if so, under what circumstances and conditions?
Currently, the breeding of exhibition birds is prohibited. The
Service seeks public comment on whether breeding of exhibition birds
should be authorized, and if so, under what circumstances and
conditions.
Question 6. Should the breeding of exhibition birds be authorized,
and if so, under what circumstances and conditions?
Exhibition and Other Permit Types
Exhibition activities are occasionally conducted by those who hold
migratory birds under other permit types, such as falconry, raptor
propagation, and others. For circumstances where exhibition is not the
primary use of the migratory bird, the Service is considering the
following three approaches. (1) For State-licensed falconers, a
regulatory authorization where no permit is required for State-licensed
falconers who receive less than a set amount in compensation per
calendar year for exhibition programs (e.g., $1,000). (2) For falconry
schools, if a falconry school holds an AWA license, then an MBTA
exhibition permit is not required. If the falconry school does not hold
an AWA license, an MBTA exhibition permit is required. (3) For other
MBTA permittees who conduct exhibition activities, but exhibition is
not the primary use of the migratory bird, the following would apply:
If the permittee holds an AWA license for exhibition, then an MBTA
exhibition permit is not required. If the permittee does not qualify
for an AWA license, exhibition authorization can be added to the
existing MBTA permit (e.g., raptor propagation, waterfowl sale and
disposal, etc.).
Question 7. Do the three approaches described above make sense for
those unique use cases? Are there other unique cases we have not
considered?
Question 8. Should the Service change practice and allow marked,
individual migratory birds to be held under multiple permits? For
example, a banded raptor could be authorized for falconry, raptor
propagation, and exhibition.
Public Comments
Please consider the following when preparing your comments:
a. Be as succinct as possible.
b. Be specific. Comments supported by logic, rationale, and
citations are more useful than opinions.
c. State your suggestions and recommendations clearly with an
expectation of what you would like the Service to do.
To promulgate a proposed rule, we will take into consideration all
comments and any additional information we receive. Please note that
submissions merely stating support for or opposition to the proposed
action, without providing supporting information, will be noted but not
considered by the Service in making a determination. We may hold
workshops or informational sessions so that interested and affected
people may provide further comments and input; if we do, we will
provide notice of these workshops or sessions in the Federal Register,
or on our website (https://www.fws.gov/program/migratory-bird-permit),
or both.
Public Availability of Comments
Written comments we receive become part of the public record
associated with this action. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that the entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so. Comments and materials we
receive will be available for public inspection, by appointment, during
normal business hours at the U.S. Fish and Wildlife Service
Headquarters (see ADDRESSES, above).
Authority
The authority for this action is the Migratory Bird Treaty Act of
1918 (16 U.S.C. 703-712) and the Bald and Golden Eagle Protection Act
(16 U.S.C. 668-668d).
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-11653 Filed 5-31-23; 8:45 am]
BILLING CODE 4333-15-P