[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,

[[Page 35823]]

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