Migratory Bird Permits; Removal of Migratory Birds From Buildings
[Federal Register: October 5, 2007 (Volume 72, Number 193)]
[Rules and Regulations]
[Page 56926-56929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05oc07-16]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
RIN 1018-AV10
Migratory Bird Permits; Removal of Migratory Birds From Buildings
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations
governing migratory bird permitting. We amend 50 CFR part 21 to allow
removal of migratory birds (other than federally listed threatened or
endangered species, bald eagles, and golden eagles) from inside
buildings in which the birds may pose a threat to themselves, to public
health and safety, or to commercial interests.
DATES: This rule is effective on November 5, 2007.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, at the Division of Migratory Bird
Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive,
Room 4091, Arlington, Virginia 22203-1610.
FOR FURTHER INFORMATION CONTACT: George T. Allen, Wildlife Biologist,
Division of Migratory Bird Management, U.S. Fish and Wildlife Service,
703-358-1825.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service is the Federal agency delegated
the primary responsibility for managing migratory birds. The delegation
is authorized by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et
seq.), which implements conventions with Great Britain (for Canada),
Mexico, Japan, and the Soviet Union (Russia). Raptors (birds of prey)
are afforded Federal protection by the 1972 amendment to the Convention
for the Protection of Migratory Birds and Game Animals, February 7,
1936, United States-Mexico, as amended; the Convention between the
United States and Japan for the Protection of Migratory Birds in Danger
of Extinction and Their Environment, September 19, 1974; and the
Convention Between the United States of America and the Union of Soviet
Socialist Republics (Russia) Concerning the Conservation of Migratory
Birds and Their Environment, November 26, 1976. A list of migratory
bird species protected by the MBTA can be found at 50 CFR 10.13.
To simplify removal of migratory birds from buildings in which
their presence may be a threat to the birds, to public health and
safety, or to commercial interests, we will allow the removal of any
migratory bird, except a threatened or endangered species, a bald
eagle, or a golden eagle, from the inside of any building in which a
bird might be trapped, without requiring a migratory bird permit to do
so. The bird must be captured using a humane method and, in most cases,
immediately released to the wild. This regulation does not allow
removal of birds or nests from the outside of buildings without a
permit. Removal of active nests from inside buildings must be conducted
by a federally permitted migratory bird rehabilitator.
This regulatory addition will facilitate removal of birds from
buildings, which would otherwise require a migratory bird permit. Our
changes are detailed below in the Regulation Promulgation section of
this document.
What Comments on the Proposed Rule Did We Receive?
We received six sets of comments on the proposed rule. The comments
raised relatively few issues, which we discuss here.
Issue: One commenter believed that the rule should include bird
nests.
Response: Removal or destruction of nests of most species of birds
when the nests are not in use is allowed. With this regulations change,
an active nest may
[[Page 56927]]
be removed from inside a building with the assistance of a permitted
rehabilitator. We clarified the relevant language in this rule.
Issue: A commenter suggested that the words ``and for buildings
undergoing renovation or demolition'' be added after the words
``commercial interests.''
Response: Renovation and demolition of buildings can be conducted
outside the nesting season, which is relatively short for most species.
A nest of any species protected under one or more of the Migratory Bird
Conventions is protected during the nesting season. This provision is
unchanged by this rule.
Comment: ``We suggest this proposal should more specifically
indicate what time frame is meant by `promptly' as used in the sections
on releasing birds and on transferring injured and orphaned birds to
rehabilitators.''
Response: We replaced the term ``promptly'' with ``immediately,''
and qualified this requirement slightly by requiring that an exhausted,
ill, injured, or orphaned bird be sent to a rehabilitator.
Comment: ``I fear that if you open up this wildlife management
category as is proposed, there will be a resulting unorthodox influx of
raptors into warehouse buildings across the United States to clean-out
invasive bird species. The claim will be they came through the doors
when, actually, many will have been intentionally introduced by
unscrupulous lay-people and store managers having introduced the raptor
to its captivity and peril but unable to get it out. I already see and
hear about many of these every year. However, something does need to
happen to improve the raptor recovery service response time to these
corporations, but something also needs to be done to prevent the
criminal activity of capturing a free raptor in the environment and
placing it in harms way into a ``box store'' environment to clean-out
invasive species. All too often, these magnificent wild raptors perish
trying to get out or by being mishandled.''
Response: In most cases this action is not legal, but we added
language to the regulation to address this concern.
Required Determinations
Regulatory Planning and Review
The Office of Management and Budget has determined, in accordance
with the criteria in Executive Order (E.O.) 12866, that this rule is
not a significant regulatory action.
a. This rule will not have an annual economic effect of $100
million or more. It will not adversely affect an economic sector,
productivity, jobs, the environment, or other units of government. A
cost-benefit and economic analysis thus is not required. There are
minimal costs associated with this rule.
b. This rule does not create inconsistencies with other agencies'
actions. It deals solely with governance of migratory bird permitting
in the United States. No other Federal agency has any role in
regulating activities with migratory birds.
c. There are no entitlements, grants, user fees, or loan programs
associated with the regulation of birds in buildings.
d. This rule does not raise novel legal or policy issues, and is in
compliance with other laws, policies, and regulations.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small entities (i.e.,
small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule will not have a significant
economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act, and we certify that this action will not have a
significant economic impact on a substantial number of small entities,
because the changes we are making are intended primarily to simplify
removal of birds from structures in which the birds may either pose a
threat to public health and safety or commercial interests, or be at
risk themselves.
The costs associated with this change to our regulations would be
very small. This rule is not a major rule under SBREFA (5 U.S.C.
804(2)). It will not have a significant impact on a substantial number
of small entities, so a regulatory flexibility analysis of this action
is not required.
a. This rule will not have an annual effect on the economy of $100
million or more.
b. This rule will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
c. This rule will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. Actions
under the regulation will not affect small government activities in any
significant way.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. It is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, the rule will not have significant
takings implications. A takings implication assessment is not required.
This rule does not contain a provision for taking of private property.
Federalism
No significant economic impacts are expected to result from
allowing individuals, businesses, or government offices to remove
migratory birds from buildings. This rule will not interfere with the
States' ability to manage themselves or their funds, nor does it have
sufficient Federalism effects to warrant preparation of a Federalism
assessment under E.O. 13132.
Civil Justice Reform
In accordance with E.O. 12988, the Office of the Solicitor has
determined that the rule will not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
We examined these regulations under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). There will be no new information
collection requirements associated with this change to our regulations.
We may not collect or sponsor, nor is a person required to respond to,
a collection of information unless it displays a
[[Page 56928]]
currently valid Office of Management and Budget control number.
National Environmental Policy Act
We have analyzed this rule in accordance with the National
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and part 516 of
the U.S. Department of the Interior Manual (516 DM). A change to our
regulations allowing the removal of migratory birds from buildings will
not have a significant environmental impact.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have
evaluated potential effects on Federally recognized Indian Tribes and
have determined that there are no potential effects. This rule will not
interfere with the Tribes' ability to manage themselves or their funds
or to regulate migratory bird activities on Tribal lands.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued E.O. 13211 addressing
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. Because this rule would
affect only removal of birds from structures in limited circumstances,
it is not a significant regulatory action under E.O. 12866, and will
not significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Environmental Consequences of the Action
The change we are making is to allow people to remove birds
protected under the Migratory Bird Treaty Act from buildings. We do not
expect significant environmental impacts of this action.
Socioeconomic. We do not expect the action to have discernible
socioeconomic impacts.
Migratory bird populations. This rule will not alter the take of
migratory birds from the wild. It will not change migratory bird
populations.
Endangered and Threatened Species. The regulation is for migratory
birds other than threatened or endangered species. It will not affect
threatened or endangered species or habitats important to them.
Compliance With Endangered Species Act Requirements
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the
Interior] shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this chapter'' (16
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure
that any action authorized, funded, or carried out ( is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536 (a)(2)). The change to our
regulations will not affect listed species.
Author
The author of this rulemaking is Dr. George T. Allen, U.S. Fish and
Wildlife Service, Division of Migratory Bird Management, 4401 North
Fairfax Drive, Mail Stop 4107, Arlington, VA 22203-1610.
List of Subjects in 50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Regulation Promulgation
• For the reasons stated in the preamble, we amend part 21 of subchapter
B, chapter I, title 50 of the Code of Federal Regulations, as follows.
PART 21--MIGRATORY BIRD PERMITS
• 1. The authority citation for part 21 continues to read as follows:
Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C.
703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public
Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703.
• 2. Amend Sec. 21.12 by:
• a. Revising the introductory paragraph and paragraph (a);
• b. Redesignating paragraphs (b), (c), and (d) as paragraphs (b)(1),
(b)(2), and (c) and adding a new heading to paragraph (b);
• c. Adding a heading to newly designated paragraph (c); and
• d. Adding a new paragraph (d), to read as set forth below.
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:
(1) * * *
(2) * * *
(c) Licensed veterinarians:
* * * * *
(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.
(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.
[[Page 56929]]
(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.
Dated: September 4, 2007.
David M. Verhey,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-19712 Filed 10-4-07; 8:45 am]
BILLING CODE 4310-55-P
![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}