Federal Register / Vol. 68, No. 207 / Monday, October 27, 2003 / Rules and Regulations 61123

ACTION: Final rule. Federal Communications Commission. not specifically covered by other John A. Karousos, existing types of permits. SUMMARY: The Audio Division, at the Assistant Chief, Audio Division, Media Currently, approximately 2,500 request of Montgomery Broadcasting Bureau. special purpose permits for migratory Company, licensee of Station WQZQ– [FR Doc. 03–26957 Filed 10–24–03; 8:45 am] bird rehabilitation purposes are active FM, Channel 273C1, Dickson, BILLING CODE 6712–01–P nationwide, representing almost half the Tennessee, deletes Dickson, Tennessee, approximately 5,500 currently active special purpose permits. The permits Channel 273C1, from the FM Table of were tailored to address migratory bird Allotments, allots Channel 273C1 at DEPARTMENT OF THE INTERIOR rehabilitation activities by means of Pegram, Tennessee, as the community’s Standard Conditions attached to every Fish and Wildlife Service first local FM service, and modifies the permit. Those Standard Conditions are license of Station WQZQ–FM to specify the basis of the regulatory framework operation on Channel 273C1 at Pegram. 50 CFR Parts 17, 21 and 22 established by this rulemaking, which Channel 273C1 can be allotted to RIN 1018–AH87 creates a new permit category Pegram, Tennessee, in compliance with specifically for rehabilitation of the Commission’s minimum distance Migratory Bird Permits; Regulations migratory birds. separation requirements with a site Governing Rehabilitation Activities and The rule addresses rehabilitation of restriction of 32.9 km (20.5 miles) Permit Exceptions threatened and endangered migratory northwest of Pegram. The coordinates bird species and amends 50 CFR 17 for Channel 273C1 at Pegram, AGENCY: Fish and Wildlife Service, (Endangered and Threatened Wildlife) Tennessee, are 36–17–50 North Latitude Interior. to exempt persons who obtain a and 87–19–31 West Longitude. ACTION: Final rule. rehabilitation permit from having to obtain an additional permit under part DATES: Effective November 17, 2003. SUMMARY: This regulation creates a 17 to care for threatened and permit category specifically to authorize FOR FURTHER INFORMATION CONTACT: endangered migratory bird species. migratory bird rehabilitation. Migratory Deborah Dupont, Media Bureau, (202) Accordingly, the rule contains bird rehabilitation is the practice of 418–2180. numerous provisions addressing caring for sick, injured, or orphaned rehabilitation of threatened and SUPPLEMENTARY INFORMATION: This is a migratory birds with the goal of endangered migratory bird species, synopsis of the Commission’s Report releasing them back to the wild. In including additional requirements to and Order, MB Docket No. 03–51, addition to establishing this new permit notify and coordinate with the Service. category, this regulation creates two adopted October 1, and released October New Permit Exceptions 3, 2003. The full text of this exceptions to migratory bird permit Commission decision is available for requirements: For public officials This rule also adds a new permit inspection and copying during normal responsible for tracking infectious exception to 50 CFR 21.12 to allow Federal, State, and local wildlife business hours in the FCC Information diseases, and for veterinarians who officials, land managers, and public Center, Portals II, 445 12th Street, SW., receive injured or sick migratory birds. health officials responsible for Room CY–A257, Washington, DC 20554. EFFECTIVE DATE: This rule is effective November 26, 2003. monitoring public health threats to The complete text of this decision may collect, possess, transport, and dispose ADDRESSES: The complete file for this also be purchased from the of sick or dead migratory birds or their rule is available for inspection, by Commission’s duplicating contractor, parts for analysis to confirm the appointment, during normal business Qualex International, Portals II, 445 presence or absence of infectious hours at the Division of Migratory Bird 12th Street, SW., Room CY–B402, disease such as West Nile virus and Management, U.S. Fish and Wildlife Washington, DC, 20554, (202) 863–2893, botulism. The exception does not apply Service, 4501 North Fairfax Drive, Suite facsimile (202) 863–2898, or via e-mail to healthy birds, or where circumstances 400, Arlington, Virginia 22203. [email protected]. indicate that the death, injury, or FOR FURTHER INFORMATION CONTACT: List of Subjects in 47 CFR part 73 disability of a bird was caused by factors Brian Millsap, Chief, Division of other than infectious disease. This Radio, Radio broadcasting. Migratory Bird Management, U.S. Fish permit exception will facilitate timely and Wildlife Service; 703/358–1714. response to public health concerns and ■ Part 73 of title 47 of the Code of Federal SUPPLEMENTARY INFORMATION: outbreaks of avian infectious disease. Regulations is amended as follows: The rule also provides an exemption Background to the permit requirements of 50 CFR PART 73—RADIO BROADCAST The Migratory Bird Treaty Act part 17 and 50 CFR part 21 for SERVICES (MBTA) (16 U.S.C. 703 et seq.) prohibits veterinarians to temporarily hold and possession of any bird protected by treat listed migratory bird species. ■ 1. The authority citation for Part 73 treaties between the U.S. and Canada, Proposed rule and comments continues to read as follows: Mexico, Japan, and Russia. Birds received. On December 6, 2001 (66 FR Authority: 47 U.S.C. 154, 303, 334 and 336. covered by the Act are referred to as 63349), we proposed a rule establishing ‘‘migratory birds.’’ Prior to this a permit category specifically governing § 73.202 [Amended] rulemaking, persons engaged in the rehabilitation of migratory birds to providing treatment to sick, injured, or replace our system of issuing permits for ■ 2. Section 73.202(b), the Table of FM orphaned migratory birds had to obtain migratory bird rehabilitation under the Allotments under Tennessee, is a special purpose permit from the U.S. miscellaneous Special Purpose permit amended by removing Dickson, Channel Fish and Wildlife Service under 50 CFR category authorized by 50 CFR 21.27. 273C1, and by adding Pegram, Channel 21.27. The special purpose permit We received 199 comments on the 273C1. category is used to authorize activities proposed rule. Of those, 60 were general

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comments, most of which were regulations because they are protected immediately take it to a permitted submitted by individuals who were not not only by the MBTA, but also by the migratory bird rehabilitator.) rehabilitators. Of the remaining 139 Bald and Golden Eagle Protection Act Comment: Persons exempt from comments, 123 were from rehabilitators; (BGEPA), which contains different, and migratory bird permit requirements by 10 were from State agencies; and 6 were in some respects more protective, § 21.12 should still have to adhere to from associations. language than the MBTA. This final rule some facility and husbandry standards. revises the proposed § 21.2 language in Service response: As part of a separate Section-by-Section Analysis order to clarify that the migratory bird rulemaking, we intend to propose The following preamble text discusses permit exemptions at § 21.12(a), (c), and language that addresses § 21.12 permit the substantive comments received and (d) also apply to eagles. exemptions and establishes baseline provides our responses to those This final rule also introduces a minor facility and husbandry requirements for comments. Additionally, it provides an revision to part 22 (eagle permits). The those entities exempted under § 21.12. explanation of significant changes from revision to § 22.11 accomplishes the Comment: Public health officials will the proposed rule. We do not address same purpose as the changes to § 21.2, not adequately safeguard the birds, the comments that were favorable and and was necessary to bring part 21 because they won’t be able to recognize contained no recommendations for (migratory bird permits) and part 22 into the differences between public health revisions. Comments are organized by agreement. Prior to this rulemaking, threats and other conditions that do not topic. The citations in the headings § 22.11 provided that certain actions affect public health. Rehabilitators correspond to provisions within the prohibited by the BGEPA may be should accompany them. Birds may be Final Rule. permitted only under part 22, part 13, unnecessarily killed. The regulations Revisions to 50 CFR part 17: and/or § 21.22 (banding or marking need to include provisions addressing Comment: The rulemaking contains permits). Thus, the only permit the care of these birds after they are provisions that revise § 17.21 to exempt regulations within part 21 that applied collected, as well as a requirement to permitted migratory bird rehabilitators to eagles were regulations pertaining to notify a permitted rehabilitator, and from having to obtain an additional banding and marking permits. The new recordkeeping requirements. permit under 50 CFR 17, which governs § 22.11 language extends the application Service response: Rehabilitators are federally listed threatened and of part 21 to eagles, by providing that free to volunteer their services to endangered species. Yet the word actions prohibited under the BGEPA accompany such public health officials. ‘‘endangered’’ is not accompanied by may be permitted by part 22, part 13, However, whether or not rehabilitators the word ‘‘threatened.’’ Do those and/or part 21, as provided by § 21.2. are present, these officials need to be provisions apply to species that are Permit exemption for public health able to pick up birds that may be threatened, as well as to those that are officials. § 21.12(c): The Service has evidence of a high risk to public health. endangered? revised this provision for the final rule Furthermore, the majority of these birds Service response: The rule addresses by adding employees of land will already be dead or mortally ill. We both threatened and endangered management agencies to the list of do not agree that it would be in the best species. Within existing regulations, exempted personnel who may collect interest of the overall protection of § 17.21 addresses endangered species, infected birds without a permit. We migratory birds, or that it will enhance specifically, while § 17.31 addresses made this revision because of the public perception of the field of threatened species. However, by increasing presence of West Nile virus migratory bird rehabilitation, to impose reference, most of § 17.21 does apply to nationwide, which has been onerous recordkeeping requirements on threatened, as well as endangered, accompanied by an increased need for persons acting to protect public health species because the regulations at land managers, such as the National in situations where most birds are dead § 17.31 state: ‘‘Except as provided in Park Service, to monitor the spread of or doomed. subpart A of this part, or in a permit the virus in avian populations on public Permit exemption for veterinarians issued under this subpart, all of the lands. § 21.12(d): Comment: Veterinarians are provisions of § 17.21 shall apply to Comment: The word ‘‘toxins’’ should not usually trained to treat birds. And threatened wildlife, except be changed to ‘‘causes’’ to allow public wild birds may be given less priority § 17.21(c)(5)’’ [italics added here for health officials to pick up birds injured since they are not associated with emphasis]. Thus, in order to exempt by natural causes. paying customers. Veterinarians should rehabilitators from the requirement to Service response: Replacing the word be required to get permits. obtain a separate permit under part 17 ‘‘toxins’’ with ‘‘causes’’ would create a Service response: The purpose of this to rehabilitate both endangered and different result from what we intended. exemption is to make legal a practice threatened species, this rule needs only This provision was not meant to allow that is common today—that is, the to amend the sections of part 17 that public health officials to collect birds situation where a person finds an address endangered species (§ 17.21), injured by natural causes or accidents. injured bird, and not knowing what else and not also § 17.31, which addresses Rather it is intended to cover only to do, brings it to a veterinarian. Many threatened species. situations where birds are suspected to veterinarians do not want to turn away Scope of Regulations. (§ 21.2): The have been stricken by infectious an injured creature, particularly if it proposed rule contained revisions to diseases (including those caused by means that it may not survive long § 21.2 in order to allow the new permit natural toxins). The final rule continues enough to be taken to a permitted regulation to cover rehabilitation of to provide that public health officials migratory bird rehabilitator. Right now, eagles as well as other migratory birds. acting without a permit would not be if the veterinarian tries to stabilize the This was necessary because, under authorized to collect and possess birds bird, he or she is violating the law. The current regulations, permits authorizing that appear to have been injured as the Service believes that veterinarians activities involving eagles are covered result of anything but infectious should not be forced to make the choice under separate regulations at part 22, diseases or natural toxins. (A different between providing emergency care to a rather than part 21, which covers provision within the new permit stricken bird and breaking the law. permits for all other migratory birds. regulation authorizes any person to pick Furthermore, we believe that this Eagles have their own permit up an injured bird in order to provision will foster greater awareness

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within the veterinary community of than the requirement for rehabilitators? injured birds that otherwise might not legal status and medical needs of The rule requires veterinarians to be saved. migratory birds, and will build contact the Ecological Services Office, Comment: Veterinarians should be relationships and strengthen whereas rehabilitators are required to required to record the name and contact communication between veterinarians contact their issuing Migratory Bird information for the person who and migratory bird rehabilitators, Permit Office? delivered the bird, so that fledglings can resulting in an overall net benefit to Service response: Veterinarians are be reunited with their parents. migratory birds. not permit holders, and therefore have Service response: Under the rule, Comment: The veterinary permit no special relationship with the Service. veterinarians are not authorized to exemption is not needed because the It is just as easy for them to keep the accept healthy fledglings. The rule new permit regulation’s ‘‘Good telephone number of the local exempts them from the permit Samaritan clause’’ at § 21.31(a) should Ecological Services Office handy (which requirement only in cases of sick or cover veterinarians already. is the decisionmaking body in this injured birds. Service response: The good Samaritan scenario) as it is for them to contact the Comment: Many veterinarians are not clause does not authorize persons to Regional Migratory Bird Permit Office. trustworthy; some will use birds to retain birds or to provide stabilizing In contrast, permitted rehabilitators experiment on. How will they be medical treatment or euthanasia. Under established a relationship with the monitored? the Good Samaritan clause, a person Service’s Migratory Bird Permit Office Service response: We do not agree that who finds and takes temporary (the issuing office) when they applied many veterinarians are likely to possession of an injured bird is required for and were issued a permit. Contacting experiment on migratory birds. to contact a permitted rehabilitator, and the issuing office is easier for them Comment: Veterinarians should not transfer the bird to them immediately. because the telephone number is be exempt from permitting Comment: Veterinarians should be included with their permit. The issuing requirements. They do far too much required to contact the Service for one office can then contact the Ecological damage (stress issues, imprinting, of the following: a referral to a permitted Services Office. In addition, we hope migratory bird rehabilitator, permission medical supply issues, surgical issues, that this rule will foster a new to stabilize for transfer within 24 hours, caging concerns, etc.). relationship between veterinarians and or permission to euthanize. Service response: The rule requires Service response: The rule states that the Service in relation to migratory veterinarians to transfer birds to veterinarians must transfer any bird birds. In the case of endangered species, rehabilitators within 24 hours after the they do not euthanize to a permitted it makes sense that that relationship be bird is stabilized. Many of the concerns migratory bird rehabilitator. with Ecological Services, the Service’s noted by the commenter will not arise Veterinarians may contact the Service if office that handles listed species. under this scenario (surgical issues, they need to find a local rehabilitator, Comment: Veterinarians should not imprinting). While there is some risk but we do not see what purpose it have to keep records, except for the that veterinarians will not provide would serve to require them to contact birds they euthanize, since the rest are adequate care, we believe that the us for a referral, when in some cases, transferred to permittees who keep the majority will, and that the ability of they will already have such information. records. veterinarians to accept birds from the Second, the rule only provides authority Service response: We agree with this public and stabilize them will result in for necessary stabilization of the bird’s comment. The rule has been revised to an overall benefit to migratory birds. condition, which we would certainly require veterinarians to keep records of ‘‘Good Samaritan clause.’’ § 21.31(a). grant, should the vet call us, so we do only those birds that they euthanize or Comment: This provision should be not see what purpose it would serve to which otherwise die in their care. revised to require people who pick up require the veterinarian to call us for Comment: The phrase ‘‘necessary birds to transfer them to a permitted permission. Finally, euthanasia is a treatment’’ is not well-defined. ‘‘As soon rehabilitator within 24 hours, not just means to stop the suffering of the bird. as practicable’’ is too ambiguous. ‘‘immediately’’ as the proposed rule To require a veterinarian to call the Veterinarians should have to apply for says. Service could unduly prolong such a permit if they wish to do more. Service response: We believe that the suffering, so the rule does not require Veterinarians should be required to language of the proposed rule will better this either. contact rehabilitators before performing ensure that Good Samaritans do not Comment: Veterinarians should not any extended treatment. delay in finding a permitted have to call U.S. Fish and Wildlife Service response: We have revised the rehabilitator to accept the bird. Service’s Ecological Services personnel final rule to clarify that, absent a permit, General permit provisions § 21.31(b). when they receive an injured federally veterinarians may only stabilize or Comment: The rule should say that listed migratory bird species. Rather, euthanize birds, and we have rehabilitators provide ‘‘rehabilitative they should have to call a permitted established a time limit of 24 hours in services,’’ not ‘‘medical care.’’ Only rehabilitator. which veterinarians may keep birds veterinarians may provide medical care, Service response: The rule requires after stabilization without contacting the under State licensure. veterinarians to contact the Service for permit office for permission to retain the Service response: We have revised the the same reason that it requires bird. rule to state that rehabilitators are rehabilitators to contact the Service: Comment: The rule should require authorized to provide ‘‘rehabilitative specialized facilities exist to care for veterinarians to keep birds separated care.’’ some listed species, and in those cases, from other animals and away from noise Comment: The 24-hour limit within it could be critical that the bird be and disturbance. which rehabilitators are required to transferred to the designated facility as Service response: While we agree with transfer species for which they do not soon as possible. the recommendation to separate birds have authorization is too short. Comment: Why is the veterinarian’s from noise and other animals, many vets Sometimes a qualified rehabilitator is requirement to contact the Service when may not be able to provide such an ideal not easily accessible or readily they receive a listed species different situation, yet may still be able to aid available. Also, in some situations it is

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better for the bird not to be moved so renewing their permits should not need Comment: The permit application fee soon. to show this. should be waived because of the vital Service response: We have revised the Service response: The purpose of this public service rehabilitators perform. rule to state that the bird must be requirement is primarily for mentoring Rehabilitators voluntarily do the transferred within 48 hours. The rule purposes for new applicants. A Service’s work for them, and are funded also now provides that the permittee rehabilitator renewing a permit does not through donations and community must contact the issuing office for need to resubmit the same information support. Some may not be able to afford authorization to retain the bird until it he or she provided in the original to pay the fee. can be transferred, if a rehabilitator permit application. Instead, he or she Service response: Although we authorized to receive the bird is not will use a Service permit renewal form, believe the work of rehabilitators is very available within 48 hours. which only asks for any information valuable, it is not a Service Comment: Rehabilitators should be that has changed since the applicant last responsibility. None of the applicable able to use their birds in educational applied. laws or treaties make provision for care programs. Comment: The requirement to have of individual birds, nor are funds Service response: The purpose of the another permitted rehabilitator vouch appropriated by Congress for such a rehabilitation permit is to rehabilitate for the applicant’s experience is purpose. Rather, we are charged with birds for release to the wild. Birds held unnecessarily burdensome and implies and receive funding for implementing under a rehabilitation permit can be distrust. the various Migratory Bird Treaties and used for education only if transferred to Service response: The letter serves to the Migratory Bird Treaty Act, which an educational permit—after being show that the applicant has had prohibit virtually any human contact deemed nonreleasable by a veterinarian. experience rehabilitating birds. We do with migratory birds unless authorized Birds undergoing rehabilitative care that not believe that asking for a showing of by regulations we issue, or by a permit are exposed to humans in educational experience implies distrust. It is merely from us. The permit program has programs could become imprinted, a way to distinguish those applicants significant costs, and we are directed by compromising successful who have experience from those who do Congress and the Office of Management reestablishment in the wild. (Within the not. We also do not agree that this and Budget to charge a fee for providing context of this rulemaking, the word requirement is overly burdensome. The permits, to recover at least some of these imprinted means habituated to letter need not be lengthy. Furthermore, costs. Because of this, we do not receive humans). Even if not imprinted, the this requirement is not new; it has been appropriated funding sufficient to cover stress from this type of exposure can a requirement on the Special Purpose— all costs of issuing permits, and must inhibit the rehabilitation of the bird. Rehabilitation permit application form depend upon application fee revenues Application process and fee for over a decade. to make up the balance. In this § 21.31(c). Comment: The rule does not Comment: As part of the application particular case, the permit application say what form the applicant must use to requirements, the cooperating fee is $5 or $10 dollars annually, which apply for a rehabilitation permit. veterinarian should not be required to is not a significant financial burden Service response: The rule has been state knowledge of the training and upon any one applicant. revised to state that the applicant must qualifications of the applicant. What criteria will the Service consider use Service Form 3–200–10b. We Service response: The application before issuing a permit? § 21.31(d). removed the provisions within this does not require such a statement; Comment: What criteria will the Service section that specified what the rather, it recommends that the use to decide what species a person will application must include, since all veterinarian provide such knowledge if be qualified to rehabilitate? The rule application requirements are specified he or she has it. However, we will only says he or she must have ‘‘adequate on the application form. Notice is reconsider the need for this language experience.’’ What is ‘‘adequate published in the Federal Register every when the application form is eligible for experience?’’ 3 years alerting the public of their revision. Service response: We were reluctant opportunity to review and comment on Comment: People should not be to define exactly what type and amount Service permit application forms and required to have facilities in place of experience will be considered other forms used to collect information before obtaining their permit. It is not adequate, because of the different types from the public. The current reasonable to ask the applicant to build of experiences that a person could have Rehabilitation permit application form expensive facilities without knowing that might contribute to his or her was open for public comment on whether the permit will be granted. ability to rehabilitate birds. An September 6, 2000 (65 FR 54060) and Service response: Having adequate applicant who has cared for hundreds of March 8, 2001 (66 FR 13947), and will facilities in place is a standard uninjured orphaned nestlings, but who be open for review and comment again requirement for all permits authorizing has never had any hands-on experience in 2003 or 2004. possession of live wildlife. A permit can with injured birds, will not be qualified Comment: The applicant must submit be issued to authorize rehabilitation of for a permit that authorizes a letter from a permitted rehabilitator types of birds that do not require rehabilitation of injured and sick birds. stating that the rehabilitator will extensive or expensive facilities. Then, Depending on the extent of the provide assistance to the applicant, but the permittee can upgrade his or her applicant’s experience working with the rule does not specify what kind of facilities at any time after the permit is baby birds, he or she may be qualified assistance is envisioned. Is it for issued to house more birds or different for a permit that is restricted to caring mentoring purposes for new species. When such additions are made, for orphaned nestlings. Similarly, rehabilitators, or is it supposed to the issuing office will expand the hands-on experience working with ensure that there is a ‘‘back-up’’ authorization on the permit, assuming injured and sick songbirds will not be rehabilitator available in case of illness the other criteria are also met (i.e., the sufficient to qualify an applicant for a or absence? If the former, the applicant must also have the required permit to rehabilitate eagles—though it requirement to have a relationship with experience to rehabilitate the new may be enough to enable the applicant another permitted rehabilitator seems to species he or she wishes to add to the to obtain a permit to work with be geared towards novices. Persons permit). passerines. However, because numerous

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commenters were uncomfortable could determine after a year if the transfer the bird to a designated special without some guidance as to what we subpermittee was ready to receive facility. will consider ‘‘adequate experience,’’ permittee status. Comment: The requirement to have a we revised this section to require at Service response: We feel that this working relationship with a veterinarian least 100 hours of hands-on experience rule accomplishes the same objectives should not apply to rehabilitators who with the types of species (not each and as a formal 1-year requirement for a are veterinarians or ‘‘other qualified every specific species) that the applicant sponsor, but with more flexibility. We biological specialists’’ such as intends to rehabilitate, or ‘‘comparable expect most applicants to gain ornithologists or raptor biologists. experience.’’ Applicants’ experience experience by working with permittees Service response: We agree that an with migratory bird rehabilitation must as subpermittees, and we ask the permit applicant need not have an agreement span at least 1 year. This indicates an applicant to include a letter of reference with a licensed veterinarian if the enduring interest in the field, as from a permitted rehabilitator who has applicant is a licensed veterinarian. The opposed to a temporary enthusiasm. Up knowledge of the applicant’s rule has been revised to reflect this. to 20 hours of the time requirement may experience. However, we do not agree that an be fulfilled through attending migratory Comment: The rule should require advanced degree in biology or bird rehabilitation seminars and training permittees to have at least 6 months of ornithology includes the type of medical courses. experience in rehabilitation, a portion of education that can substitute for Comment: There should be a formal which must occur in the spring. veterinary expertise. examination or review process to ensure Service response: The rule has been Comment: Some rehabilitators do not that applicants have the necessary revised to require that an applicant have have access to a veterinarian. They knowledge to treat migratory birds. Or experience spanning an entire year, in should be able to send birds to the Service should set up a training and order to qualify for a permit. The rehabilitators who have such a accreditation program to train purpose of this provision is primarily to relationship. prospective rehabilitators. ensure that the applicant’s interest is Service response: A veterinarian must Service response: While a written test more than fleeting, but it will also make be available to treat birds that need or accreditation program may have it more likely that successful applicants medical care. To involve another value, our priority is that the applicant will have rehabilitation experience rehabilitator in the transfer to the have hands-on experience in migratory during nesting season. veterinarian is an unnecessary burden bird rehabilitation. We believe that the Comment: People should not have to on the second rehabilitator and is not in application requirements and issuance the best interest of the bird, which may criteria of this rule will adequately show prior experience with every species they wish to rehabilitate, since need more immediate medical attention. ensure that permittees are qualified. We believe, and the rule reflects, that Comment: People should not be more than 800 species of birds are protected by the MBTA. the originating rehabilitator should required to have experience before establish his or her own agreement with Service response: The rule requires getting their own rehabilitation permit. the veterinarian without going through experience with the types of species you It is too hard for them to get that another rehabilitator, particularly if the intend to rehabilitate, not with each and experience without first having a veterinarian will wind up treating the every species. For example, if you have permit. Having a permitted rehabilitator bird anyway. with little or no experience is better adequate experience working with red- Comment: The rule should state that than having no rehabilitator at all, as tailed hawks, goshawks, and barred the veterinarians will provide ‘‘medical would be the case in some areas. In owls, we may issue you a permit care,’’ not ‘‘veterinary assistance.’’ Also, order to gain the prior experience, the authorizing rehabilitation of raptors, the rule does not define ‘‘qualified’’ Service could institute a ‘‘novice’’ class even though you have never handled veterinarian. It should be changed to of rehabilitators who would be more Cooper’s Hawks, Harris’s Hawks or ‘‘licensed.’’ tightly regulated. They could gain their American Kestrels. Of course, issuance Service response: We agree with these experience during the time spent in the of the permit would also be contingent comments and have revised the rule novice class. Also, applicants may not on whether you have adequate facilities accordingly. want to admit to experience acquired for rehabilitating raptors. Comment: The rule should contain without a permit. Comment: The rule states that the provisions addressing what happens if Service response: We do not believe it Service will consider how much the relationship with the veterinarian is is advisable to allow people with little experience a person has rehabilitating terminated. Commenters make no or no experience to handle migratory species that are federally listed as suggestion of what kind of provisions birds, which are wild animals and have threatened or endangered. This language would be appropriate. The rule should very particular needs. We do not think should be removed because most people state that the rehabilitator must it would be safe for the people or the will have no experience with listed maintain a working relationship with a birds. Providing safe and effective species, since these species are rare. veterinarian throughout the tenure of rehabilitative care for sick and injured Service response: We agree with this the permit. migratory birds requires knowledge that comment. Although some listed species Service response: We agree with this is difficult to impossible to acquire may be locally abundant where they do comment and have revised the rule to without rehabilitation experience. To occur, most are rarely encountered. add a condition within § 21.31(e) that gain experience, a person dedicated to Furthermore, rehabilitative treatment for the permittee must maintain a working becoming a migratory bird rehabilitator most listed species will not differ relationship with a licensed can volunteer as a subpermittee for a categorically from treatment for unlisted veterinarian. federally permitted rehabilitator. Most birds. The language of the rule has been Comment: Veterinarians could rehabilitators can always use the revised to reflect that permittees will be encounter liability issues if they commit assistance of capable individuals who authorized to accept listed species with on paper to providing assistance. are willing to learn. the condition that they immediately Service response: No veterinarian is Comment: The regulations should contact the Service to ascertain whether required to enter into such an provide for a licensed sponsor who the Service will require the permittee to agreement. None need participate in

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migratory bird rehabilitation if it makes Standards. We will use the Minimum diet consumed by the species in the him or her uncomfortable. Also, the Standards as a ‘‘starting point’’ for wild, with consideration for the age and veterinary relationship has been a evaluating what are acceptable cage health of the individual bird.’’ We also requirement of the rehabilitation permit sizes, without forcing rehabilitators to replaced the requirement to keep the for many years, and we have not heard have cages with the published floor clean and well-drained with the any concerns from veterinarians dimensions. The rule leaves room for following condition: ‘‘Enclosures must regarding this provision. variation, while providing the regulated be kept clean, well-ventilated, and Comment: The rule should state that community with basic parameters that hygienic.’’ an applicant must have ‘‘State the Service considers acceptable. Comment: The rule should require authorization’’ rather than a State Comment: The Service’s reliance on that birds not be in sight of predators, ‘‘permit or license’’ if required by the the MSWR disenfranchises those including predatory birds. Also, the rule State. Some States require authorization, rehabilitators who do not belong to should require facilities to have but it is not in the form of either a IWRC and NWRA and those who are quarantine areas to protect against the permit or a license. unaware of the existence of the spread of infectious diseases. Service response: The rule has been standards document. Service response: While we view revised to include ‘‘other Service response: We do not agree that these suggestions as good advice, we authorization.’’ the proposal would disenfranchise consider them beyond the threshold of Comment: The rule does not say what nonmembers of the IWRC/NWRA, since what ought to be mandated by this happens when the rehabilitator loses his that MSWR document is widely regulation. or her State permit. available to members and nonmembers Comment: The caging dimensions of Service response: Section 21.31(g) has alike, and we have been using it and the MSWR are too ‘‘ambitious’’ for been revised to further clarify that the referencing it for years in the Standard Unlimited Activity and Limited Activity Federal permit is not valid unless the Conditions for rehabilitation permits. birds, more than a reasonable minimum. permittee possesses and adheres to the Comment: The rule should not Some reduction in overall sizes should terms of his or her State authorization. reference an external document be acceptable. Facilities § 21.31(e)(1). Comment: The (MSWR), because it is privately Service response: We realize that Service should not use the Minimum published and subject to change. Which some recommendations within the Standards for Wildlife Rehabilitation edition does the Service mean to use? MSWR are viewed by some (MSWR) as guidelines because the Service response: The rule has been rehabilitators to be ambitious or MSWR includes references to revised to state that it refers to the 2000 optimum rather than minimal, and we requirements that are outside the (3rd Edition) of the MSWR. agree that in many instances, some purview of the Service. Comment: The Service should replace reduction in cage size will be Service response: The rule has been the use of the MSWR as guidelines with acceptable. The rule provides for revised to clarify that it refers only to the exact language on Page 20, variation from the suggested dimensions the suggested caging dimensions within paragraph 2, of the MSWR. This would of the MSWR where such variation will the MSWR, and not to the other topics give the applicant more flexibility, but not jeopardize migratory birds. within the MSWR. ensure high standards. Comment: The Service should not Service response: The language to Comment: The MSWR recommends require rehabilitators to conform to which the commenter refers does not too much water depth in pools for MSWR recommendations because they include any mention of actual cage wading birds. Two feet of water can be are too restrictive, and could be cost dimensions. We need established a struggle for a recuperating pelican. It prohibitive. general parameters for what the Service could also result in hypothermia. These Service response: The rule does not will consider acceptable cage minimum depths should either be require anyone to conform to the dimensions. Such parameters give the reduced or dropped entirely. MSWR; rather it states that the Service Service something consistent to work Service Response: We appreciate will use the MSWR as guidelines in with in assessing applicants’ facilities, observations like this because they can evaluating applicants’ facilities. This as well as providing guidance for help us to evaluate facilities. Common provision reflects the Service’s current applicants to use in planning their sense information from applicants with policy. Use of the Minimum Standards facilities. experience is valuable and will help us provides the permit issuing office with Comment: The rule makes no to understand why variation from the preliminary parameters to use as provision for flight caging. Birds need to standards may not jeopardize birds. guidelines for judging what constitutes do more than open their wings to be Comment: The MSWR recommends suitable avian housing. The use of a conditioned for release. wood as a caging material. However, common reference will foster consistent Service response: Cages used to this is a bad material to use in some treatment for applicants. condition birds for release are addressed areas, such as Florida, because it rapidly Comment: The Service may be too in the MSWR as part of the caging rots, fails to withstand tropical storms, rigid about enforcement of the MSWR dimensions that the Service will use as and blocks healthy air flow in humid caging dimensions. guidelines. environments. Also, soft netting can Service response: We have revised the Comment: No mention is made of entangle birds and interfere with air language of this section to state that the overcrowding. No mention is made of circulation. Service will authorize variation from the providing clean, fresh water and food. Service Response: The rule does not standards where doing so is reasonable No mention is made of the need to state what specific materials must be and necessary to accommodate a safely clean the cage. used for caging or netting, nor does it particular rehabilitator’s circumstances, Service response: We have added the reference the MSWR’s recommendations unless a determination is made that following conditions to the rule: ‘‘Birds for materials. such variation will jeopardize migratory must not be overcrowded’’ and ‘‘You Comment: The facilities criteria in the birds. The revised language states more must provide the birds in your care with rule give no guidance to permit strongly that the Service will apply a diet that is appropriate and applicants and leave too much to the flexibility in our use of the Minimum nutritionally approximates the natural discretion of the Service.

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Service Response: Most people who educational formats remains prohibited reasons, we believe that allowing commented on the facilities standards of in the rule. It is possible to insulate subpermittees to take birds to the rule were not concerned that too birds from the public. However, it is authorized off-site facilities ensures much discretion was left to the Service. also true that some birds enter better care for migratory birds by Rather, many commenters felt that the rehabilitation facilities already increasing the availability of round-the- standards will not allow for enough somewhat habituated to humans. The clock care. flexibility. As written, the rule reflects rule continues to provide that Comment: Subpermittees should not the Service’s intent to be as specific as rehabilitation birds not be exposed to have to be 18 or older. Many younger possible, while at the same time the public or used in educational people can provide valuable services ensuring we remain flexible in formats. However, in rare cases, birds while gaining valuable knowledge and authorizing reasonable variation from enter rehabilitation facilities already experience. the specifics. somewhat habituated to humans. Service Response: The rule requires Comment: The requirement that Accordingly, the language of the rule that a person who will be performing caging be large enough for the birds to has been revised to state that birds may activities that require permit fully extend their wings does not make not be displayed to the public ‘‘unless authorization in the absence of the sense for facilities that are used during you use video equipment, barriers, or permittee or subpermittee must be a the first stages of rehabilitation—when other methods to reduce noise and subpermittee, and it also requires that the birds’ movement is intentionally exposure to humans to levels the birds subpermittees be 18 or older. However, restricted. would normally encounter in their minors would be allowed to help in all Service Response: We deleted this habitat.’’ (emphasis added). other situations except those that provision from the final rule, since cage Comment: The rule should provide involve actions for which a permit is dimensions are already addressed by that facilities currently approved under required (handling the birds, basically) reference to the MSWR, which provide the existing Special Purpose when the permittee or a subpermittee is for the different types of cages Rehabilitation permit will not fall out of not present. Since we would not issue recommended for different stages of compliance under the new rule. a rehabilitation permit to minors, we recovery. Service Response: The final rule will not authorize minors to perform Comment: The rule should not require contains a ‘‘grandfather clause,’’ which activities that require a permit without permittees to dedicate one cage to just states, in part, ‘‘If your facilities have supervision. one species. People need to be able to already been approved on the basis of Comment: Subpermittees’ names ‘‘decorate’’ cages to suit different photographs and diagrams, and should be on file, but including all their species. Will the Service have to authorized under a valid § 21.27 special qualifications could be difficult for big approve every new cage to house a purpose permit, then they are facilities, where large numbers of different species? preapproved to be authorized under subpermittees change frequently. Service Response: The rule does not your new permit issued under this Service Response: The application require that cages be dedicated to section, unless those facilities have requirement to list the qualifications of particular species. As long as the cage materially diminished in size or quality the subpermittees has been deleted from is adequate for any species that will be from what was authorized when you the rule. However, this information is housed in it, it is acceptable. The permit last renewed your permit, or unless you still requested on the permit application will authorize categories of species, not wish to expand the authorizations form 3–200–10b. We intend to drop this individual species. Facilities generally granted by your permit (e.g., the number requirement from the form when our can be built to house types of species or types of birds you rehabilitate).’’ application forms are revised and (e.g., large raptors, small waterbirds), Subpermittees § 21.31(e)(3). reauthorized. Meanwhile, new not individual species (e.g., Swainson’s Comment: The rule should not subpermittees need only be named in Hawk, American Avocet). When authorize subpermittees, because their writing to the issuing office without an rehabilitators receive species for which lack of experience results in higher accompanying description of their they do not have adequate facilities, mortality rates and imprinting. People qualifications. they must transfer the birds to should be encouraged to volunteer with Comment: Large facilities should not rehabilitators with such facilities. permitted rehabilitators, but volunteers have to immediately submit the names Comment: The prohibition against should not be allowed to take birds of new subpermittees. This requirement displaying birds to the public is home to facilities outside those of the is too burdensome with so much unrealistic. Keeping the birds from rehabilitator. turnover amongst volunteers at large hearing and seeing people (in particular Service Response: Volunteers are facilities. Instead, there should be a hearing people) can be difficult. Also, often critical to migratory bird requirement to send in amendments rehabilitation birds are a good rehabilitation. Few rehabilitators can every quarter listing the current educational tool that generates public afford to pay staff to do the work that subpermittees. empathy and support for the facility. volunteers do. In addition to the Service Response: Not everyone who Service Response: The Service issues valuable services subpermittees provide works under a rehabilitation permit a permit to hold and use birds for to rehabilitators, the subpermittee needs to be on file with the Service as educational programs, but it is not the system serves as a training and a subpermittee under that permit. rehabilitation permit. The purpose of recruitment program for bringing new Numerous people may be assisting at the rehabilitation permit is to rehabilitators into the field. We do not large rehabilitation centers. However, rehabilitate birds for reintroduction to believe that allowing subpermittees to only those who will be conducting the wild. Proximity to people can cause take birds to off-site facilities endangers activities that require a permit in the stress that impedes recovery, and migratory birds, because the permittee is absence of the permittee or a named exposure to human activity can responsible for ensuring that subpermittee must be on file with the habituate birds to people to the degree subpermittees are qualified to provide permit office. For instance, a facility that they lose natural instincts necessary adequate care. Off-site subpermittee may have 25 volunteers, but only four to survive in the wild. For those facilities must meet the same standards who conduct activities that require reasons, use of rehabilitation birds in as the permittee’s facilities. For these permit authority when the permittee is

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offsite or otherwise unavailable to Service response: The final rule states Service response: The intent of this oversee activities conducted under his that ‘‘As the primary permittee, you are provision is to require rehabilitators to or her permit. In that case, only those legally responsible for ensuring that take precautions to prevent birds from four volunteers need to be on file with your subpermittees, staff, and becoming so habituated to humans that the Service as subpermittees. The volunteers adhere to the terms of your they cannot survive in the wild. It is in remaining 21 people do not need to be permit when conducting migratory bird the best interest of migratory birds as a named subpermittees as long as the rehabilitation activities.’’ whole that they not be perceived as pets permittee or one of the four listed Comment: Subpermittees who by the public or treated as such by subpermittees is present when they provide frequent or long-term care permittees. Therefore, the rule requires conduct activities that require permit offsite should be required to obtain their that rehabilitators take precautions to authorization. We believe that, even for own permits. avoid imprinting, and provides that the large centers with high volunteer Service response: We have considered Service may remove birds from the care turnover, the need to update named mandating that permittees who provide of those who do not do so. subpermittees will not be onerous, since frequent and/or, long-term care off-site Comment: The Service should not not everyone assisting with permitted obtain their own permits, but decline to take imprinted birds away from activities is required to be on file with do so because some people simply do rehabilitators because the Government the Service. not want to be permittees but may be doesn’t have good facilities for holding Comment: This requirement to list able to provide quality care for birds them. subpermittees would be particularly under another person’s permit. The rule Service response: We do not hold burdensome as applied to those who requires the same standards for birds in these situations. We place them transport birds to and from the facility. subpermittee facilities, and because it with other permittees whom we have Transporters don’t really have contact requires the permittee to be responsible identified prior to the transfer. with the birds anyway. Could they for the subpermittee’s rehabilitation Comment: The rule should require merely be listed with the rehabilitator’s activities, we believe that permittees that all imprinted birds that are not records, and not with the permit office? will keep sufficient oversight over listed as threatened or endangered be subpermittees to protect the birds under Service response: Many transporters euthanized. their care. Service response: We do not agree that have frequent contact with the birds Imprinting § 21.31(e)(4)(i). Comment: all non-listed imprinted birds should be they pick up and deliver to The provision requiring imprinted birds euthanized. (See next comment.) rehabilitators, so we believe they should to be turned over to the Service should Comment: Imprinted birds should be be treated like other subpermittees. be removed from the rule. Sometimes allowed to be used for education or for Comment: The subpermittee system rehabilitators receive birds that have foster parenting. should be replaced by an apprentice already been imprinted. And, some Service response: Imprinted birds may licensing program with mandatory imprinting is likely to occur no matter be used for foster parenting under the training. what. proposed rule—but the rule does not Service response: We believe the Service response: The rule has been allow persons to use birds they subpermittee requirements of the rule, revised to clarify that the requirement to themselves have allowed to become together with the oversight of permitted transfer imprinted birds to a third party imprinted. The Service places imprinted rehabilitators, will provide sufficient applies only to birds that have been birds with other permit holders for training for persons entering the field of imprinted while under the care of the foster parenting or educational use. migratory bird rehabilitation. This permittee. The permittee will be Release § 21.31(e)(4)(ii) Comment: system has been in place for many required to transfer any bird imprinted The 180-day limit for keeping birds in years, with few problems. under his or her care to another facility rehabilitation without additional Comment: The rule does not specify specified by the Service. After no longer authorization is too short. Many birds whether the subpermittee’s facilities than 180 days, however, all surviving take over a year to be ready for release, must meet the same requirements as the birds that are nonreleasable, whether plus it must be done during an permittee’s facilities. imprinted or not, must be transferred to appropriate season. A specific limit is Service response: The rule has been another permit (unless additional arbitrary and not necessary. This revised to state that the subpermittee’s authorization is granted from the permit decision should be left to the facilities must meet the same standards office)—since the rehabilitation permit rehabilitator. as the permittee’s facilities. only authorizes possession of birds Service response: Rarely do birds Comment: Do a subpermittee’s undergoing rehabilitative care. need to be kept longer than 180 days. If facilities really need to be approved Comment: Turning birds over to the more time is needed for rehabilitation, when it is just a shoe box for nestlings? Government will result in needless or if a bird must be held until the Service response: The Service does euthanasia. Rehabilitators will have to appropriate season for its release, the not need to see photographs and tell the public that the birds were rule provides that the permittee need diagrams of a shoe box. However, the transferred and possibly euthanized. only contact the permit office for address where any subpermittee will be Service response: In the rare authorization. The instances where caring for nestlings outside of the situations when the Service has birds need longer than 180 days to be permittee’s premises must be provided removed imprinted birds from a readied for release are infrequent in writing to the permit office and permittee, we have placed the birds enough that we do not consider this authorized by the permit office before with migratory bird education permit notification requirement to be any nestlings are transferred to the holders to use in educational programs. burdensome. The longer birds remain in alternate site. Comment: Some degree of imprinting rehabilitation, the greater the chance Comment: The rule does not state will not interfere with a bird’s ability to they will become habituated to whether subpermittees are bound by all survive in the wild. If birds are too captivity. Moreover, without a limit, the requirements of the regulation. Also, imprinted to survive in the wild, they birds could be kept indefinitely. who is responsible to supervise off-site should be placed in licensed Comment: The 180-day provision is activities of subpermittees? sanctuaries. good for experienced rehabilitators, but

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less experienced rehabilitators should requirement, we have removed it from circumstances may warrant an still be held to the 90-day period with the final rule. exception to this rule, we have revised permission needed to extend it. Comment: State conservation agencies the rule to include the following narrow Service response: We do not agree that should be notified before rehabilitators exemption: The permit issuing office less experienced rehabilitators should release listed species. may waive the euthanasia requirement be allotted less time to treat and Service response: The rule provides where (1) a veterinarian makes a written condition birds for release. that if a bird is of a species that is listed recommendation that the bird should be Comment: The proposed rule says by the Federal Government as kept alive despite the severity of its nothing about the need to release birds threatened or endangered, the injuries, including an analysis of why as soon as possible. The 180-day period rehabilitator must coordinate with the the bird is not expected to experience is too long. Birds will become Service before releasing the bird. In the injuries and/or ailments that habituated to people and the conditions many cases, we will involve the State typically occur in birds with these of rehabilitation facilities. because we work in partnership with injuries, and a commitment (from the Service response: The final rule states State agencies on issues involving veterinarian) to provide medical care for that birds must be released as soon as wildlife. However, some States may not the bird for the duration of its life, they are releasable (and seasonal wish the Federal Government to including complete examinations at conditions allow). Therefore, the 180- mandate State involvement in the least once a year; and (2) a placement day limit will apply only to those birds release of federally listed species via is available for the bird with a person or that are not yet ready for release. Federal regulation. It is more facility authorized to possess it (e.g., Comment: Rehabilitators should not appropriate that State regulations, rather someone with a migratory bird need to get permission to keep birds than Federal, address whether or not education permit), where it will be longer than 180 days for foster rehabilitators must contact the State provided that veterinary care. parenting. before releasing listed species. Comment: If a permitted Service response: The purpose of the Comment: The rehabilitator should rehabilitation facility is willing to take rehabilitation permit is to authorize not need to contact the Service before on the burden of caring for birds with possession of birds so that they may be releasing a threatened or endangered the types of injuries for which the rule provided the rehabilitative care species. requires euthanasia, why not let them? necessary to return them to the wild. If Service response: We strongly Service response: First and foremost, a bird is not ready for release before the disagree with this comment. The the Service considers keeping a bird 180-day limit, but is still expected to be determination of where to release an alive under these conditions to be releasable in the future, and is suitable individual of a listed species is more inhumane (see above). Secondly, the for foster parenting, it may be used for critical than it is for nonlisted species in purpose of the rehabilitation permit is to that purpose until released. If the terms of overall success of the species. recover birds for release to the wild, not rehabilitator’s veterinarian determines The optimal release site may be one to retain birds in captivity. that a bird is permanently injured and where the individual bird is most likely Nonreleasable birds must be transferred nonreleasable, the rehabilitator may to rejoin wild populations and to another permit to be legally submit a written request to possess the reproduce. The Service’s biologists will possessed. Most rehabilitated birds that bird for foster-parenting purposes. If the often have information the rehabilitator are kept in captivity are transferred to request is justified and approved, the does not regarding the location and an educational use permit, which Regional permit office will amend the viability of wild populations of listed requires that the bird be used for rehabilitator’s permit to reflect this migratory bird species. conservation education. The Service authority. Euthanasia § 21.31(e)(4)(iii) and does not issue permits simply to keep Comment: The rule should include § 21.31(e)(4)(iv). Comment: You should birds in captivity. Allowing people to the guidelines for release that are delete the requirement to euthanize maintain migratory birds in sanctuary contained within the Minimum birds that cannot feed themselves, perch situations would compromise the status Standards for Wildlife Rehabilitation, or upright, or ambulate; or are blind, or of migratory birds as wildlife. We it should provide some other guidance require amputation of a leg, foot, or believe that this outcome would be for when the bird is ready for release. wing at the elbow or above. Some birds detrimental to migratory birds and Service response: Generally, with these conditions can lead useful would constitute an abrogation of our regulations should state what is lives as educational birds or foster responsibility to protect and conserve required, not what is recommended. In parents for juvenile migratory birds in wildlife. the interest of flexibility, the rule does rehabilitation. These decisions should Comment: The mandatory euthanasia not establish regulatory requirements for be left up to the permittee and the requirements will stop people from release of birds. There are simply too veterinarian. bringing sick and injured birds to many variables. The Minimum Service response: The euthanasia rehabilitators. Standards and other publications of the requirements are based on humane Service response: We think this rehabilitation community, as well as the consideration for the birds. The scenario is highly unlikely. People bring guidance provided by peers, can serve handicaps and stress caused by these birds to rehabilitators out of humane as valuable sources for determining type of injuries frequently lead to consideration for the birds. The suitable conditions for release. repeated additional injuries and euthanasia requirements are borne from Comment: Rehabilitators should not ailments throughout the duration of the the same humane consideration. If a have to coordinate with State and local bird’s life. The Service does not believe bird has sustained trauma and injuries wildlife officials about where to release that birds should be subjected to this that are likely to cause the bird stress, the birds. Most local and State wildlife trauma and poor quality of life for the pain, and/or further injury throughout officials would not want to be consulted sake of their human keepers, even if the duration of its life, euthanasia is the so frequently. such birds could be used as educational kindest, most humane treatment people Service response: This was a tools. Educational programs face no can provide. recommendation in the proposed rule, shortage of less disabled nonreleasable Comment: Euthanasia for these types not a requirement. Since it was not a birds. However, because extraordinary of injuries should only be mandatory if

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the bird does not acclimate well and Comment: The rule should not require the Service would and does remove cannot be placed. that all dead eagles be sent to the birds from the possession of permittees Service response: We disagree with National Eagle Repository. Rather, it when the quality of care provided to the this comment. Birds should not be should require permittees to notify the birds is not adequate or when a subjected to amputations only to be State so the State can do necropsy, and permittee violates wildlife laws, euthanized later due to failure to then send the birds to the Repository. regulations, or the terms of the permit. acclimate. That is why the rule states Service response: Not all States wish Notification to the Service that birds must be euthanized rather to be contacted by rehabilitators with § 21.31(e)(5) and throughout. Comment: than undergo amputation. eagle carcasses. The rule has been The rule contains too many notification Comment: Euthanasia requirements revised to clarify that permittees must requirements. The requirements for should not be different for listed comply with State requirements permittees to contact the Service so species. Rehabilitators should be requiring State notification and often are too burdensome. authorized to euthanize any bird that is necropsy—where such requirements Service response: The proposed suffering due to an injury too serious to exist. regulation contained 11 discreet heal without having to call the Service Imping Feathers § 21.31(e)(4)(viii). requirements for the permittee to notify for permission. Comment: The rule does not specify the Service and/or gain additional Service response: The final rule what the Service considers to be a authorization under certain continues to require rehabilitators to ‘‘reasonable’’ number of feathers that a circumstances. Ten of those notification contact the issuing office before rehabilitator may keep for imping requirements are not new in this euthanizing listed species. The reason purposes. regulation, but are carried over from the for this difference in treatment is that a Service response: We do not believe current standard conditions attached to rare situation could arise in which the the regulation should establish a all existing permits. Seven apply only to suffering of the bird might be specific number of feathers that may be threatened and endangered species, and outweighed by a critical need to recover legally retained for imping purposes. are needed so that the Service can its species. For example, the addition of Based on location, populations of determine the best placement for these a blind endangered bird could be species, and specialization, birds. The Service is engaged in active significant to a dwindling gene pool. rehabilitators will need varying recovery efforts for many listed The rule continues to provide that the numbers of feathers of particular migratory bird species, and because of rehabilitator may proceed with species. The final regulation states that the relative scarcity of listed species, the euthanasia if Service personnel are not a ‘‘reasonable number’’ will be based on placement of each individual can have available and the euthanasia is the numbers and species for which the greater ramifications for the warranted because of humane permittee regularly provides care. conservation of the species than is the considerations for the bird. Taking blood samples case for non-listed species. Because Placement and Transfer of Birds § 21.31(e)(4)(ix). Comment: The rule listed species are relatively rare, most § 21.31(e)(4)(v) and § 21.31(e)(4)(vi). should allow rehabilitators to take blood rehabilitators do not routinely Comment: Rehabilitators should not and tissue samples for research that encounter them, so these notification have to get prior approval from the would aid rehabilitators and the species requirements will not be used often and Service before placing nonreleasable with which they work, as long as doing should not create a burden for birds or their parts or feathers with so does not jeopardize the individual rehabilitators. another permittee authorized to hold bird. For example, blood may be drawn Of the remaining three notifications, migratory birds. to establish normal values for particular two should seldom be needed: the Service response: The requirement to species, or to research contagious requirement to contact a Service law obtain approval from the issuing office diseases that are not human health enforcement officer when there is before transferring nonreleasable birds hazards. reason to believe that a bird has been will ensure that birds are transferred to Service response: We have modified injured as the result of criminal activity; persons authorized to possess such this provision to clarify that samples and the requirement to gain approval birds, and not to someone whose permit may be taken for purposes of diagnosis from the issuing office to keep a bird has expired, or who already has the and recovery not just of the individual longer than 180 days. The final maximum number of birds authorized bird, but of the birds under the requirement—to obtain authorization by his or her permit. permittee’s care, generally. For broader from the issuing office before Comment: Rehabilitators should be research purposes, the rehabilitator transferring a nonreleasable bird to required—not just allowed—to donate should obtain a migratory bird scientific another person—is an important dead specimens to institutions collecting permit issued under 50 CFR safeguard to ensure that birds are placed authorized by permit to possess 21.23. with persons who are legally authorized migratory bird specimens or exempted Recall of birds § 21.31(e)(4)(xi). to possess migratory birds. from the permit requirements under Comment: The proposed rule states that The only new notification provision § 21.12. migratory birds held under a the proposed rule contained was the Service response: We encourage rehabilitation permit remain under the requirement to contact the Service if the permittees to transfer dead specimens to stewardship of the Service and may be rehabilitator suspects that a bird has an other permit holders or exempt recalled at any time. Under what avian virus or other contagious disease. institutions who can use them. circumstances would the Government We have revised that provision to However, many rehabilitators are recall birds? What is the justification? require the permittee to contact his or already stretched to their limits trying to Service response: The rule has been her State or local authority that is care for the live birds they hold under revised to clarify that permittees do not responsible for monitoring the their permit, and the Service believes own the migratory birds they hold particular health threat, rather than they should not be burdened with an under this permit. The language notify the Service. In the case of West additional requirement to locate concerning recall has been removed Nile Virus, for example, the public is authorized persons to receive each dead because we do not believe it is usually advised to contact their county specimen. necessary that this regulation state that public health agency to report diseased

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birds, but in some States a designated to both the Office of Law Enforcement recordkeeping provisions included the State agency is responsible for receiving and to the Migratory Bird Permit Office. county and distance to the nearest town. those calls. While this information may Rehabilitators should not have to call Service response: The information be of some use to the Service, we do not two Service offices to report this. required to be kept in the permittee’s have primary responsibility for Service response: We agree with this records is the same information that we responding to reports of contagious comment and have revised the rule to ask for in the annual report. It is not diseases that are considered to be public remove the requirement to notify the useful for our purposes to document the health threats, even when such diseases permit office. county or the nearest town, and we do are carried by birds. Requiring Comment: Immediate notification to not have enough staff to sift through rehabilitators to contact the responsible law enforcement where birds appear to extra information that we will not use. State or local agency, rather than the have been injured as the result of Also, we do not wish to burden Service, will eliminate what would have criminal activity is not practicable. permittees by requiring them to keep been a redundant notification. Because Rehabilitators are often busy stabilizing and submit information that we will not rehabilitators are in a good position to bird(s). Instead, the requirement to use. Those States that find that contribute to nationwide efforts to notify the Service should be ‘‘within 48 information useful may wish to include monitor contagious avian diseases, the hours.’’ those items as reporting requirements in requirement to notify the appropriate Service response: Service Law their State regulations. Enforcement personnel need to be State or local authority will benefit to Comment: Rehabilitators should be notified immediately when it appears a the public by enhancing efforts to required to record the location where crime has taken place. Otherwise, protect the health and safety of humans, the bird was found, if known, because evidence needed to build a successful livestock and wildlife. it is important for purposes of data investigation may be compromised or Comment: The Service should set up collection and release. Also, the location lost before it can be collected. a 24-hour hotline to receive the required of release should be required in records calls from rehabilitators, and it should Comment: ‘‘Criminal activity’’ should be more clearly defined. Poisoning and for enforcement purposes. The incident be an 800 number. that caused the distress or injury should Service response: Aside from the electrocution should not be considered be recorded (e.g., collision with notifications required in circumstances criminal activity. window, cat attack), if known, for involving threatened and endangered Service response: Poisoning and purposes of future analysis. Records species, which we believe will not be electrocution are considered criminal should include the name and contact exercised often, the rule does not activity in many circumstances. Power information of the person who found contain excessive requirements to companies and pesticide manufacturers and/or delivered the bird because of contact the Service (see above). and applicators are frequently held Comment: The rule relies too heavily liable for killing birds, particularly possible exposure to zoonotic diseases. on the Internet for obtaining phone when ample evidence exists that they Service response: While much of this numbers of other Service offices. Other knew or should have known that their information could be useful to the forms of access to such information actions were likely to kill birds. rehabilitator, or to a third party, we do should be provided. Electrocution of birds on power lines is not at this time have a need to collect Service response: We are revising our generally considered a prosecutable this information. If permittees wish to permit information tracking system so violation, since reasonable industry- keep these records, we encourage them that it can record and generate the accepted measures have been identified to do so, but we see no reason to require phone numbers for Service Law that can be implemented to avoid killing information to be collected and Enforcement offices that are local to the migratory birds. We believe that the rule submitted to us when we will not use permittee. Permits will be issued using need not further specify what is meant it. this new capacity, with the necessary by criminal activity, since it is not Comment: Why should the permittee contact information printed on the possible to define all the criminal be required to keep the records for 5 permit. The rule has been revised to activities that could take place, or years? That should be the Service’s reflect the fact that the contact always clearly identify under what responsibility. This requirement is an information for these offices is listed on circumstances a particular action is unnecessary burden on the permittee. the permit. criminal. The provision requires that Service response: The requirement Comment: Rehabilitators should not rehabilitators notify the Service when that permittees keep records for 5 years have the burden of contacting the they have reason to believe that birds predates this rule and applies to all Service immediately upon receiving a under their care were injured as the Service permits, and is codified at 50 threatened or endangered species. This result of a criminal act, so that we have CFR part 13.46. We also keep the provision fails to recognize the actual the opportunity to pursue the case, if information submitted via annual conditions under which rehabilitators appropriate. reports, but if discrepancies arise, are working. Immediate notification Comment: The rule should require permittees may benefit by being able to could jeopardize the bird, which may permittees to contact their State produce their own records. need immediate stabilization. Often conservation agencies as well as the Additional Conditions May be Placed personnel are not there to receive the Service whenever notification is on the Face of the Permit. § 21.31(e)(9). calls (e.g., on weekends) required. Comment: There should be no further Service response: The rule has been Service response: Not all States want reason to condition permits if a person revised to require the permittee to these notifications. As a Federal agency, meets the requirements set forth in the contact the Service within 24 hours of we will not impose this requirement on rule. This provision appears to receiving a threatened or endangered States that do not wish to be contacted. contradict the rule’s stated intent to species. If Service personnel cannot be It is more appropriate for State ‘‘codify * * *, clarify * * *, and reached, you should leave a message. regulations to address this requirement. * * *specify’’ migratory bird Comment: The proposed rule requires Recordkeeping § 21.31(e)(7). rehabilitation permit policy. The rehabilitators to report birds that appear Comment: It would be useful to some Service should specify what sort of to have been injured by criminal activity States if the information required in the ‘‘additional conditions’’ are meant by

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this provision. It’s too open-ended and Service from liability could confer Comment: The rule does not contain could be abused. unreasonable liability to the permittee, any provisions for the renewal process. Service response: We have revised resulting in lawsuits against rehabbers. Service response: Regulations this provision to clarify its meaning and Service response: We have removed covering permit renewal for all Service- scope. Our intent is to provide that this provision from the rule because issued permits are set forth in 50 CFR permits may be tailored so that they permit liability for all Service permits is 13 (General Permit Procedures). For the differ from one another according to the already set forth at 50 CFR 13.50, which rehabilitation permit, as for other circumstances of the applicants (e.g., reads: ‘‘any person holding a permit migratory bird permits, the permittee what kind of experience and facilities under this subchapter B assumes all need not submit all of the information they have). If all rehabilitation permits liability and responsibility for the required in an original permit had exactly the same set of standard conduct of any activity conducted under application. Instead, he or she should conditions and no additional the authority of such permit.’’ submit a Service permit renewal form, conditions, every permittee would be Oil Spill Provisions § 21.31(f). which is mailed to all permittees when qualified to rehabilitate any number of Comment: Why does the Service want to their permits are nearing expiration. The all types of migratory birds, without be notified whenever a dead bird is form asks the permittee to certify that exception. For example, rehabilitators found at the site of an oil spill? the information previously submitted who intend to rehabilitate only nestlings Service response: There are a variety (through either the original permit do not need extensive caging. The of legal aspects relating to oil spills, application or a subsequent renewal or Service needs to be able to differentiate including the ability of the government amendment) is still accurate. If any what types of birds these nestling to recover damages for birds and other required information has changed, the rehabilitators are authorized to wildlife killed or injured, and in some permittee must submit the updated rehabilitate from those a passerine cases to bring criminal charges. In such information. Comment: The annual report/permit rehabilitator is authorized to rehabilitate cases, the Service must be able to renewal process is not timed smoothly, or those a large facility with flight cages document the number and locations of with permits expiring at the end of the or pools for waterbirds may rehabilitate. dead birds and other wildlife before calendar year, but annual reports due at This can be done only if permits can be they are removed from the site. Since it the end of the following January. further conditioned on their face at the is not generally possible to determine Renewal permits should be sent time of issuance (or later, if the until after the immediate cleanup or site separately (first), so the rehabilitator permittee demonstrates that he or she stabilization whether this information does not have to operate under an has expanded the facilities and/or will be needed, we collect it routinely. gained additional experience). expired permit. Comment: The ‘‘additional Comment: How can the public get Service response: We have adjusted conditions’’ provision would be more copies of Best Practices for Care of the timing of the permit renewal process palatable if there existed some kind of Migratory Birds During Oil Spill to address this problem. Rehabilitation review/appeal process for applicants to Response, the document referenced in permits will be issued to be valid appeal. the rule? starting on April 1, rather than January Service response: Regulations Service response: We have inserted a 1. As existing permits are renewed, they addressing the process for challenging footnote into the rule, providing will be re-issued with a 5-year tenure, permit decisions, including permit information on how to obtain this as provided by this rule. Permits will conditions, are set forth in 50 CFR document. expire on March 31st rather than 13.29. These regulations address Term of Permit § 21.31(h). Comment: December 31st. This will result in a procedures for all Service permits, and Permit tenure should be 1 year only. If more logical, coordinated process cover how to file a Request for a 5-year tenure is included in the final wherein permittees can submit their Reconsideration to the issuing office. regulation, the wording should be more annual reports and renewal requests They also set forth procedures for filing clear as to whether all rehabilitation together, and the renewal request will a written appeal to the Regional Director permits will be issued for 5 years, or be received well before the expiration of if the applicant/permittee is dissatisfied whether some will have shorter terms. the permit. with the determination made on the Service response: Because the Comment: Renewal should be Request for Reconsideration. majority of rehabilitators’ circumstances correlated with State permit renewal. Comment: To avoid the creation of will not substantially change from year Service response: Permit tenure and additional conditions, the Service to year, we do not see any purpose in renewal dates vary widely from State to should establish a multi-tiered permit renewing permits annually. We believe State. Federal permits would have to incorporating different levels of that the annual report requirement will have different tenures depending on the experience and facilities standards, allow the Service to monitor the factors State in which the permittee resides. where each level has standardized that are most important to safeguard the Tracking and maintaining renewals conditions. welfare of birds held under under these circumstances would be Service response: We do not believe rehabilitation permits. We do not wish very difficult for the Service. Therefore, such a system could adequately capture to burden the permittees with an annual we will continue to process renewals at all the variables and particulars that permit renewal, nor do we believe that the same time each year. make one situation different from processing every permittee’s renewal Will I need to apply for a new permit another. Additional conditions would every year is a good use of limited if I already have a Special Purpose— still be necessary in order to Service resources. Although most Rehabilitation permit? § 21.31(i) accommodate these variables, or else permits will have a tenure of 5 years Comment: The rule does not say some permits would simply have to be under the final regulation, the wording whether current permit holders will be denied—which we do not view as a ‘‘No rehabilitation permit will have a ‘‘grandfathered,’’ or whether they will good alternative. term exceeding five (5) years’’ allows have to reapply under the new Liability Clause § 21.31(e)(10). the Service the flexibility to issue some regulations. Comment: As worded, the provision of rehabilitation permits for less than 5 Service response: Current permit the proposed rule that indemnifies the years, if appropriate. holders need not take any special action

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as a result of the new rule. When it is are not protected by the Federal laws we believe that the qualifications for time to renew their permits, if they wish are charged with implementing. We obtaining the Federal permit, together to continue rehabilitating migratory agree that rehabilitation of common with the experience gained by putting birds, they should apply for renewal invasive species such as starlings and the permit to use, will guarantee a basic using the Service permit renewal form house sparrows could have a minor level of knowledge and experience mailed to them by the issuing office. negative impact on conservation of sufficient to rehabilitate migratory birds, Rehabilitation permits will be renewed native species, and we would prefer that without our mandating additional under the new permit category created exotic species not be released to the formal training. by this rule. In addition, the final rule wild. However, this issue is the Comment: Some provisions of the rule contains a ‘‘grandfather clause,’’ which jurisdiction of State governments, which will interfere with recovery operations states, in part: ‘‘If your facilities have have primary regulatory authority on of chemical companies that operate already been approved on the basis of most matters concerning wildlife. under special purpose rehabilitation photographs and diagrams, and Comment: The Service should transfer permits. The troubling provisions authorized under a valid § 21.27 special permitting authority to the States to include the following requirements: purpose permit, then they are administer, where States demonstrate listing all individuals on the permit preapproved to be authorized under they meet certain Federal standards. (helpers at the chemical company your new permit issued under this Service response: At this time, the recovery operations are usually seasonal section, unless those facilities have majority of the States have not college students and other temporary materially diminished in size or quality developed specific regulations regarding labor), conforming to facility from what was authorized when you migratory bird rehabilitation. As of requirements, maintaining a working last renewed your permit, or unless you 1999, according to a study conducted by relationship with veterinarians, and wish to expand the authorizations Allan M. Casey III and Shirley J. Casey establishing a working relationship with granted by your permit (e.g., the number (A Study of the State Regulations another permitted rehabilitator. These or types of birds you rehabilitate).’’ Governing Wildlife Rehabilitation recovery operations only hold birds long Inspections. Comment: The rule does During 1999), only 33 States had enough to clean off sodium carbonate not address rehabilitation facility regulations addressing wildlife (Na2CO3) or to allow fresh water to rinse inspections. rehabilitation. These vary widely in off dilute phosphoric acid. Service response: Inspection of terms of scope and the level of detail Service response: Because such permittees’ facilities is addressed in 50 addressed. State regulations pertaining recovery efforts operate under CFR 13.47. The regulations provide that specifically to migratory bird parameters much different from those a Service Law Enforcement official (‘‘the rehabilitation are virtually nonexistent. governing the activities of ‘‘typical’’ Director’s agent’’) may inspect the Comment: The rule should require migratory bird rehabilitators, the Service premises, wildlife, and records at ‘‘any that the permittee be a member of either will continue to issue permits for this reasonable hour.’’ the National Wildlife Rehabilitators type of recovery operation under the Comment: Facility inspections should Association (NWRA), the International Special Purpose permit (§ 21.27) rather be conducted before issuing each permit Wildlife Rehabilitation Council (IWRC), than the permit category created by this and then at regular intervals during the or both. rule. term of the permit to ensure that Service response: We do not agree that Comment: The rule has far too many facilities maintain standards. membership in the NWRA or the IWRC new paperwork requirements. Service response: Although we will should be a prerequisite for obtaining or Service response: This rule does not conduct site visits prior to issuing some maintaining a Federal migratory bird introduce any new paperwork permits, we do not have the resources rehabilitation permit. Both associations requirements. All reporting to inspect all applicants’ facilities. As have contributed to the increasing requirements remain unchanged from part of the application process, the quality of wildlife rehabilitation, and what has been required under the applicant must submit photographs and they have much to offer rehabilitators in Special Purpose—Rehabilitation permit diagrams of his or her facilities. These the way of continuing education, category. should provide enough information to networking, and other services. determine whether most applicants’ However, both the NWRA and the IWRC Endangered Species Act Consideration facilities are adequate. Many State are nongovernmental organizations and Section 7(a)(2) of the Endangered conservation agencies have more are not affiliated with the Service. The Species Act (ESA) of 1973, as amended resources available to them than we do, criteria of this rule should ensure that (16 U.S.C. 1531, et seq.), requires all and are able to send officers out to permittees have basic competence and Federal agencies to ‘‘insure that any perform inspections more regularly. qualifications necessary for migratory action authorized, funded, or carried out Coordination between State agencies bird rehabilitation. As with any * * * is not likely to jeopardize the and the Service allows us to identify profession, rehabilitators will always be continued existence of any endangered situations where problems exist and in a position to gain additional species or threatened species or result in Federal inspection may be warranted. knowledge and skills. Membership in the destruction or adverse modification the NWRA and/or IWRC may provide a of [critical] habitat.’’ The Service Additional Comments means of attaining this growth and underwent intra-Service consultation Comment: Permitted rehabilitators improvement, should rehabilitators pursuant to section 7 of the ESA and should not be allowed to raise, elect to join either or both associations. determined that the activities rehabilitate, or release non-native Comment: The rule should require authorized by this rule will not species such as European starlings and permittees to provide evidence of jeopardize listed species or result in house sparrows because these continuing education every 2 years. destruction or adverse modification of negatively affect native migratory bird Service response: While we strongly critical habitat. species. encourage permittees to attend classes, Service response: The Service does conferences, seminars, and Required Determinations not have the authority to prohibit presentations in order to increase Responsibilities of Federal Agencies possession or rehabilitation of birds that knowledge and improve skills, we To Protect Migratory Birds (Executive

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Order 13186). This rule has been $25 every 5 years to obtain and renew of Management and Budget approval is evaluated for impacts to migratory birds, migratory bird rehabilitation permits, required under the Paperwork with emphasis on species of amounting to $5 per year per Reduction Act. Information collection management concern, and is in rehabilitator. Therefore, we certify that associated with migratory bird permit accordance with the guidance in E.O. this action will not have a significant programs has been approved by OMB 13186. economic impact on a substantial under control number 1018–0022, Regulatory Planning and Review number of small entities. A final which expires April 30, 2004. The (Executive Order 12866). In accordance Regulatory Flexibility Analysis is not Service may not conduct or sponsor, with the criteria in Executive Order required. Accordingly, a Small Entity and a person is not required to respond 12866, this rule is not a significant Compliance Guide is not required. to, a collection of information unless it regulatory action. OMB has made this Unfunded Mandates Reform Act. In displays a currently valid OMB control final determination of significance accordance with the Unfunded number. under E.O. 12866. Mandates Reform Act (2 U.S.C. 1501 et National Environmental Policy Act. a. This rule will not have an annual seq.): We have determined that this rule is economic effect of $100 million or a. This rule will not ‘‘significantly or categorically excluded under the adversely affect an economic sector, uniquely’’ affect small governments. A Department’s NEPA procedures in 516 productivity, jobs, the environment, or Small Government Agency Plan is not DM 2, Appendix 1.10. other units of government. A cost- required. We have determined and Government-to-Government benefit and economic analysis is not certified pursuant to the Unfunded Relationship with Tribes. In accordance required. Mandates Reform Act, 2 U.S.C. 1502 et with the President’s memorandum of b. This rule will not create serious seq., that this rulemaking will not April 29, 1994, ‘‘Government-to- inconsistencies or otherwise interfere impose a cost of $100 million or more Government Relations with Native with other agencies’ actions. The Fish in any given year on local or State American Tribal Governments’’ (59 FR and Wildlife Service is the only Federal government or private entities. 22951), E.O. 13175, and 512 DM 2, this agency responsible for enforcing the b. This rule will not produce a rule will have no effect on federally Migratory Bird Treaty Act. Federal mandate of $100 million or recognized Indian tribes. c. This rule will not materially affect greater in any year; i.e., it is not a entitlements, grants, user fees, loan ‘‘significant regulatory action’’ under List of Subjects programs, or the rights and obligations the Unfunded Mandates Reform Act. 50 CFR Part 17 of their recipients. This rule does not Takings. In accordance with have anything to do with the afore- Executive Order 12630, the rule does Endangered and threatened species, mentioned programs. not have significant takings Exports, Imports, Reporting and d. This rule does not raise novel legal implications. This rule will not result in recordkeeping requirements, or policy issues. Rehabilitation activities the physical occupancy of property, the Transportation. for migratory birds currently operate physical invasion of property, or the 50 CFR Part 21 under a different permit than that regulatory taking of any property. A proposed in this rule. takings implication assessment is not Exports, Hunting, Imports, Reporting Regulatory Flexibility Act. Under the required. and recordkeeping requirements, Regulatory Flexibility Act (5 U.S.C. 601 Federalism. In accordance with Transportation, Wildlife. et seq., as amended by the Small Executive Order 13132, and based on 50 CFR Part 22 Business Regulatory Enforcement the discussions in Regulatory Planning Fairness Act (SBREFA) of 1996), and Review above, this rule does not Exports, Imports, Reporting and whenever an agency is required to have significant Federalism effects. A recordkeeping requirements, publish a notice of rulemaking for any Federalism assessment is not required. Transportation, Wildlife. proposed or final rule, it must either Because of the migratory nature of ■ For the reasons set forth in this certify that the rule will not have a certain species of birds, the Federal preamble, we amend 50 CFR chapter I as significant economic impact on a Government has been given follows: substantial number of small entities responsibility over these species by the (i.e., small business, small Migratory Bird Treaty Act. This rule PART 17—ENDANGERED AND organizations, and small governmental does not have a substantial direct effect THREATENED WILDLIFE AND PLANTS jurisdictions) or prepare and make on fiscal capacity, nor does it change the ■ 1. The authority citation for part 17 available for public comment a roles or responsibilities of Federal or continues to read as follows: regulatory flexibility analysis that State governments or intrude on State describes the effect of the rule on small policy or administration. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. entities. Civil Justice Reform. In accordance 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– We have examined this rule’s with Executive Order 12988, the Office 625, 100 Stat. 3500; unless otherwise noted. potential effects on small entities as of the Solicitor has determined that the ■ 2. Amend § 17.21 to add paragraphs required by the Regulatory Flexibility rule does not unduly burden the judicial (c)(6), (c)(7), (d)(3), and (d)(4) to read as Act. This rule requires applicants for system, and that it meets the follows: migratory bird rehabilitation permits to requirements of sections 3(a) and 3(b)(2) pay the fee listed in the Service permit of the Order. The Department of the § 17.21 Prohibitions. application fee schedule at 50 CFR Interior has certified to the Office of * * * * * 13.11. Currently, the Service waives fees Management and Budget that this rule (c) * * * for migratory bird rehabilitation permit meets the applicable standards provided (6) Notwithstanding paragraph (c)(1) applicants. This rulemaking reinstates in Sections 3(a) and 3(b)(2) of E.O. of this section, any person acting under the standard $25 permit application fee 12988. a valid migratory bird rehabilitation and extends the term of the permit to 5 Paperwork Reduction Act. This rule permit issued pursuant to § 21.31 of this years. The net effect is that does not contain new or revised subchapter may take endangered approximately 2,500 persons will pay information collection for which Office migratory birds without an endangered

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species permit if such action is the golden eagle (Aquila chrysaetos), for migratory birds in accordance with necessary to aid a sick, injured, or which regulations are provided in part § 21.31(e)(4)(vi); and orphaned endangered migratory bird, 22 of this subchapter. (3) Keep records for 5 years of all provided the permittee: * * * * * migratory birds that die while in their care, including those they euthanize. (i) Notifies the issuing Migratory Bird ■ 5. Amend § 21.12 to add paragraphs (c) The records must include: the species of Permit Office immediately upon receipt and (d) to read as follows: of such bird (contact information for bird, the type of injury, the date of your issuing office is listed on your § 21.12 General exceptions to permit acquisition, the date of death, and permit and on the Internet at http:// requirements. whether the bird was euthanized. offices.fws.gov); and * * * * * ■ 6. Add § 21.31 to subpart C to read as (ii) Disposes of or transfers such birds, (c) Employees of Federal, State, and follows: or their parts or feathers, as directed by local wildlife and land management § 21.31 Rehabilitation permits. the Migratory Bird Permit Office. agencies; employees of Federal, State, (7) Notwithstanding paragraph (c)(1) and local public health agencies; and (a) What is the permit requirement? of this section, persons exempt from the laboratories under contract to such Except as provided in § 21.12, a permit requirements of § 21.12(c) and agencies may in the course of official rehabilitation permit is required to take, (d) of this subchapter may take sick and business collect, possess, transport, and temporarily possess, or transport any injured endangered migratory birds dispose of sick or dead migratory birds migratory bird for rehabilitation without an endangered species permit or their parts for analysis to confirm the purposes. However, any person who in performing the activities authorized presence of infectious disease. Nothing finds a sick, injured, or orphaned under § 21.12(c) and (d). in this paragraph authorizes the take of migratory bird may, without a permit, (d) * * * uninjured or healthy birds without prior take possession of the bird in order to (3) Notwithstanding paragraph (d)(1) authorization from the Service. immediately transport it to a permitted of this section, any person acting under Additionally, nothing in this paragraph rehabilitator. a valid migratory bird rehabilitation authorizes the taking, collection, or (b) What are the general permit permit issued pursuant to § 21.31 of this possession of migratory birds when provisions? subchapter may possess and transport circumstances indicate reasonable (1) The permit authorizes you to: (i) Take from the wild or receive from endangered migratory birds without an probability that death, injury, or another person sick, injured, or endangered species permit when such disability was caused by factors other orphaned migratory birds and to possess action is necessary to aid a sick, injured, than infectious disease and/or natural them and provide rehabilitative care for or orphaned endangered migratory bird, toxins. These factors may include, but them for up to 180 days; provided the permittee: are not limited to, oil or chemical (ii) Transport such birds to a suitable (i) Notifies the issuing Migratory Bird contamination, electrocution, shooting, habitat for release, to another permitted Permit Office immediately upon receipt or pesticides. If the cause of death of a rehabilitator’s facilities, or to a of such bird (contact information for bird is determined to be other than your issuing office is listed on your veterinarian; natural causes or disease, Service law (iii) Transfer, release, or euthanize permit and on the Internet at http:// enforcement officials must be contacted offices.fws.gov); and such birds; without delay. (iv) Transfer or otherwise dispose of (ii) Disposes of or transfers such birds, (d) Licensed veterinarians are not or their parts or feathers, as directed by dead specimens; and required to obtain a Federal migratory (v) Receive, stabilize, and transfer the Migratory Bird Permit Office. bird permit to temporarily possess, (4) Notwithstanding paragraph (d)(1) within 48 hours types of migratory bird stabilize, or euthanize sick and injured species not authorized by your permit, of this section, persons exempt from the migratory birds. However, a veterinarian permit requirements of § 21.12(c) and in cases of emergency. If a rehabilitator without a migratory bird rehabilitation authorized to care for the bird is not (d) of this subchapter may possess and permit must transfer any such bird to a transport sick and injured endangered available within that timeframe, you federally permitted migratory bird must contact the issuing office for migratory bird species without an rehabilitator within 24 hours after the endangered species permit in authorization to retain the bird until it bird’s condition is stabilized, unless the can be transferred. performing the activities authorized bird is euthanized. If a veterinarian is under § 21.12(c) and (d). (2) The permit does not authorize the unable to locate a permitted use of migratory birds for educational * * * * * rehabilitator within that time, the purposes. veterinarian must contact his or her PART 21—MIGRATORY BIRD PERMITS (c) How do I apply for a migratory Regional Migratory Bird Permit Office bird rehabilitation permit? You must for assistance in locating a permitted ■ 3. The authority citation for part 21 is apply to the appropriate Regional migratory bird rehabilitator and/or to revised to read as follows: Director—Attention Migratory Bird obtain authorization to continue to hold Permit Office. You can find addresses Authority: 16 U.S.C. 703–712; Pub. L. 106– the bird. In addition, veterinarians must: for the appropriate Regional Directors in 108; 16 U.S.C. 668a. (1) Notify the local U.S. Fish and § 2.2 of subchapter A of this chapter. ■ 4. Revise § 21.2(b) to read as follows: Wildlife Service Ecological Services Your application package must consist Office immediately upon receiving a of the following: § 21.2 Scope of regulations. threatened or endangered migratory bird (1) A completed application (Form 3– * * * * * species. Contact information for 200–10b); (b) This part, except for § 21.12(a), (c), Ecological Services offices can be (2) A copy of your State rehabilitation and (d) (general permit exceptions); located on the Internet at http:// permit, license, or other authorization, if § 21.22 (banding or marking); § 21.29 offices.fws.gov; one is required in your State; and (Federal falconry standards); and § 21.31 (2) Euthanize migratory birds as (3) A check or money order made (rehabilitation), does not apply to the required by § 21.31(e)(4)(iii) and payable to the ‘‘U.S. Fish and Wildlife bald eagle (Haliaeetus leucocephalus) or § 21.31(e)(4)(iv), and dispose of dead Service’’ in the amount of the

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application fee for permits issued under Regional Migratory Bird Permit Office the criteria of paragraph (e)(1) of this this section listed in § 13.11 of this will authorize variation from the section. All such facilities must be chapter. standards where doing so is reasonable approved by the issuing office. As the (d) What criteria will the Service and necessary to accommodate a primary permittee, you are legally consider before issuing a permit? (1) particular rehabilitator’s circumstances, responsible for ensuring that your Upon receiving an application unless a determination is made that subpermittees, staff, and volunteers completed in accordance with such variation will jeopardize migratory adhere to the terms of your permit when paragraph (c) of this section, the birds. However, except as provided by conducting migratory bird rehabilitation Regional Director will decide whether to paragraph (f)(2)(i) of this section, all activities. issue you a permit based on the general facilities must adhere to the following (4) Disposition of birds under your criteria of § 13.21 of this chapter and criteria: care. (i) You must take every precaution whether you meet the following (i) Rehabilitation facilities for to avoid imprinting or habituating birds requirements: migratory birds must be secure and in your care to humans. If a bird (i) You must be at least 18 years of age provide protection from predators, becomes imprinted to humans while with at least 100 hours of hands-on domestic animals, undue human under your care, you will be required to experience, gained over the course of at disturbance, sun, wind, and inclement transfer the bird as directed by the least 1 whole year, rehabilitating the weather. issuing office. types of migratory birds you intend to (ii) Caging must be made of a material (ii) You may not retain migratory rehabilitate (e.g., waterbirds, raptors), or that will not entangle or cause injury to birds longer than 180 days without comparable experience. Up to 20 hours the type of birds that will be housed additional authorization from your of the 100-hour time requirement may within. Regional Migratory Bird Permit Office. be fulfilled by participation in migratory (iii) Enclosures must be kept clean, You must release all recuperated birds bird rehabilitation seminars and well-ventilated, and hygienic. to suitable habitat as soon as seasonal courses. (iv) Birds must not be overcrowded, conditions allow, following recovery of (ii) Your facilities must be adequate to and must be provided enough perches, the bird. If the appropriate season for properly care for the type(s) of migratory if applicable. release is outside the 180-day bird species you intend to rehabilitate, (v) Birds must be housed only with timeframe, you must seek authorization or you must have a working relationship compatible migratory bird species. from the Service to hold the bird until with a person or organization with such (vi) Birds may not be displayed to the the appropriate season. Before releasing facilities. public unless you use video equipment, a threatened or endangered migratory (iii) You must have an agreement with barriers, or other methods to reduce bird, you must coordinate with your a licensed veterinarian to provide noise and exposure to humans to levels issuing Migratory Bird Permit Office. medical care for the birds you intend to the birds would normally encounter in (iii) You must euthanize any bird that rehabilitate, unless you are a licensed their habitat. You may not use any cannot feed itself, perch upright, or veterinarian. equipment for this purpose that causes ambulate without inflicting additional (iv) You must have a State permit, stress or harm, or impedes the injuries to itself where medical and/or license, or other authorization to rehabilitation of any bird. rehabilitative care will not reverse such rehabilitate migratory birds if such (2) Dietary requirements. You must conditions. You must euthanize any authorization required by your State. provide the birds in your care with a bird that is completely blind, and any (2) In issuing a permit, the Regional diet that is appropriate and nutritionally bird that has sustained injuries that Director may place restrictions on the approximates the natural diet consumed would require amputation of a leg, a types of migratory bird species you are by the species in the wild, with foot, or a wing at the elbow or above authorized to rehabilitate, based on your consideration for the age and health of (humero-ulnar joint) rather than experience and facilities as well as on the individual bird. performing such surgery, unless: (A) A licensed veterinarian submits a the specific physical requirements and (3) Subpermittees. Except as provided written recommendation that the bird behavioral traits of particular species. by paragraph (f)(2)(ii) of this section, should be kept alive, including an (e) What are the standard conditions anyone who will be performing analysis of why the bird is not expected for this permit? In addition to the activities that require permit to experience the injuries and/or general permit conditions set forth in authorization under paragraph (b)(1) of ailments that typically occur in birds part 13 of this chapter, rehabilitation this section when you or a subpermittee with these injuries and a commitment permits are subject to the following are not present, including any (from the veterinarian) to provide conditions: individual who transports birds to or medical care for the bird for the (1) Facilities. You must conduct the from your facility on a regular basis, duration of its life, including complete activities authorized by this permit in must either possess his or her own examinations at least once a year; appropriate facilities that are approved Federal rehabilitation permit, or be (B) A placement is available for the and identified on the face of your authorized as your subpermittee by bird with a person or facility authorized permit. In evaluating whether caging being named in writing to your issuing to possess it, where it will receive the dimensions are adequate, the Service Migratory Bird Permit Office. veterinary care described in paragraph will use as a guideline the standards Subpermittees must be at least 18 years (e)(4)(iii)(A) of this section; and developed by the National Wildlife of age and possess sufficient experience to tend the species in their care. (C) The issuing office specifically Rehabilitators Association and the authorizes continued possession, International Wildlife Rehabilitation Subpermittees authorized to care for migratory birds at a site other than your medical treatment, and rehabilitative Council (Minimum Standards for care of the bird. 1 facility must have facilities adequate to Wildlife Rehabilitation, 2000). The (iv) You must obtain authorization house the species in their care, based on from your issuing Migratory Bird Permit 1 Copies may be obtained by contacting either the National Wildlife Rehabilitators Association: 14 International Wildlife Rehabilitation Council: 829 Office before euthanizing endangered North 7th Avenue, St. Cloud MN 56303–4766, Bancroft Way, Berkeley, CA 94710, http:// and threatened migratory bird species. http://www.nwawildlife.org/default.asp; or the www.iwrc-online.org. In rare cases, the Service may designate

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a disposition other than euthanasia for from your Regional Migratory Bird report contains all, and only, the those birds. If Service personnel are not Permit Office before conducting information required by Form 3–202–4. available, you may euthanize necropsies on threatened or endangered (9) At the discretion of the Regional endangered and threatened migratory species. Director, we may stipulate on the face birds without Service authorization (xi) This permit does not confer of your permit additional conditions when prompt euthanasia is warranted ownership of any migratory bird. All compatible with the permit conditions by humane consideration for the welfare birds held under this permit remain set forth in this section, to place limits of the bird. under the stewardship of the U.S. Fish on numbers and/or types of birds you (v) You may place nonreleasable live and Wildlife Service. may possess under your permit, to birds that are suitable for use in (5) Notification to the U.S. Fish and stipulate authorized location(s) for your educational programs, foster parenting, Wildlife Service. rehabilitation activities, or otherwise research projects, or other permitted (i) You must notify your issuing specify permitted activities, based on activities with persons permitted or Migratory Bird Permit Office within 24 your experience and facilities. otherwise authorized to possess such hours of acquiring a threatened or (f) How does this permit apply to oil birds, with prior approval from your endangered migratory bird species, or and hazardous waste spills? Prior to issuing Migratory Bird Permit Office. bald or golden eagle, whether live or entering the location of an oil or (vi)(A) You may donate dead birds dead. You may be required to transfer hazardous material spill, you must and parts thereof, except threatened and these birds to another facility designated obtain authorization from the U.S. Fish endangered species, and bald and by the Service. and Wildlife Service Field Response Coordinator or other designated Service golden eagles, to persons authorized by (ii) You must immediately notify the representative and obtain permission permit to possess migratory bird local U.S. Fish and Wildlife Service Law from the On-Scene Coordinator. All specimens or exempted from permit Enforcement Office if you have reason activities within the location of the spill requirements under § 21.12. to believe a bird has been poisoned, are subject to the authority of the On- (B) You must obtain approval from electrocuted, shot, or otherwise Scene Coordinator. The U.S. Fish and your issuing office before disposing of subjected to criminal activity. Contact Wildlife Service is responsible for the or transferring any live or dead information for your local Service Law disposition of all migratory birds, dead endangered or threatened migratory bird Enforcement office is listed on your or alive. specimen, parts, or feathers. permit, or you can obtain it on the (C) You must send all dead bald and (1) Permit provisions in oil or Internet at http://offices.fws.gov. golden eagles, and their parts and hazardous material spills. (i) In addition (iii) If the sickness, injury, or death of feathers to: National Eagle Repository, to the rehabilitation permit provisions any bird is due or likely due to avian Building 128, Rocky Mountain Arsenal, set forth in paragraph (b) of this section, virus, or other contagious disease or Commerce City, CO 80022. If your State when under the authority of the public health hazard, you must notify requires you to notify State wildlife designated U.S. Fish and Wildlife and comply with the instructions given officers of a dead bald or golden eagle Service representative this permit by the State or local authority that is before sending the eagle to the further authorizes you to temporarily responsible for tracking the suspected Repository you must comply with State possess healthy, unaffected birds for the disease or hazard in your location, if regulations. States may assume purpose of removing them from that agency is currently collecting such temporary possession of the carcasses imminent danger. information from the public. for purposes of necropsy. (ii) This permit does not authorize (D) Unless specifically required to do (6) You must maintain a working salvage of dead migratory birds. When otherwise by the Service, you must relationship with a licensed dead migratory birds are discovered, a promptly destroy all other dead veterinarian. If your working Service law enforcement officer must be specimens by such means as are relationship with your original notified immediately in order to necessary to prevent any exposure of the cooperating veterinarian is dissolved, coordinate the handling and collection specimens to animals in the wild. you must establish an agreement within of evidence. Contact information for (vii) With authorization from your 30 days with another licensed your local Service Law Enforcement issuing Migratory Bird Permit Office, veterinarian to provide medical services office is listed on your permit and on you may hold a nonreleasable bird to the birds in your care, and furnish a the Internet at http://offices.fws.gov. The longer than 180 days for the purpose of copy of this agreement to the issuing designated Service representative will fostering juveniles during their office. have direct control and responsibility rehabilitation. You may also use birds (7) Recordkeeping. You must over all live migratory birds, and will you possess under an educational maintain complete and accurate records coordinate the collection, storage, and permit to foster juveniles. of all migratory birds that you receive, handling of any dead migratory birds (viii) You may possess a reasonable including for each bird the date with the Service’s Division of Law number of feathers for imping purposes, received, type of injury or illness, Enforcement. based on the numbers and species of disposition, and date of disposition. (iii) You must notify your issuing birds for which you regularly provide You must retain these records for 5 Migratory Bird Permit Office of any care. years following the end of the calendar migratory birds in your possession (ix) You may draw blood and take year covered by the records. within 24 hours of removing such birds other medical samples for purposes of (8) Annual report. You must submit from the area. the diagnosis and recovery of birds an annual report that includes the (2) Conditions specific to oil and under your care, or for transfer to information required by paragraph (e)(7) hazardous waste spills. (i) Facilities. authorized facilities conducting for the preceding calendar year to your Facilities used at the scene of oil or research pertaining to a contagious issuing Migratory Bird Permit Office by hazardous waste spills may be disease or other public health hazard. the date required on your permit. You temporary and/or mobile, and may (x) You may conduct necropsies on may complete Service Form 3–202–4, or provide less space and protection from dead specimens in your possession, submit your annual report from a noise and disturbance than facilities except that you must obtain approval database you maintain, provided your authorized under paragraph (e)(1) of this

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section. Such facilities should conform rehabilitation permit will have a term then they are preapproved to be as closely as possible with the facility exceeding 5 years. authorized under your new permit specifications contained in the Service (i) Will I need to apply for a new issued under this section, unless those policy titled Best Practices for Migratory permit under this section if I already facilities have materially diminished in Bird Care During Oil Spill Response.2 have a special purpose permit to size or quality from what was (ii) Subpermittees. In cases of oil and rehabilitate migratory birds, issued authorized when you last renewed your hazardous waste spills, persons who under § 21.27 (Special purpose permit, or unless you wish to expand assist with cleaning or treating permits)? (1) If you had a valid Special the authorizations granted by your migratory birds at the on-scene facility Purpose—Migratory Bird Rehabilitation permit (e.g., the number or types of will not be required to have a Permit issued under § 21.27 on birds you rehabilitate). Regulations rehabilitation permit or be a November 26, 2003, your permit will governing permit renewal are set forth subpermittee; however, volunteers must remain valid until the expiration date in § 13.22 of this chapter. be trained in rescue protocol for listed on its face. If you renew your migratory birds affected by oil and permit, it will be issued under this PART 22—EAGLE PERMITS hazardous waste spills. A permit (or section. ■ subpermittee designation) is required to (2) If your original permit 7. The authority citation for part 22 perform extended rehabilitation of such authorization predates permit continues to read as follows: birds, after initial cleaning and treating, application procedures requiring Authority: 16 U.S.C. 668a; 16 U.S.C. 703– at a subsequent location. submission of photographs and 712; 16 U.S.C. 1531–1544. diagrams for approval of your facilities, (g) Will I also need a permit from the ■ 8. Amend § 22.11 by revising the first and your facilities have never been State in which I live? If your State sentence to read as follows: requires a license, permit, or other approved by the migratory bird permit authorization to rehabilitate migratory office on the basis of such photographs § 22.11 What is the relationship to other birds, your Federal migratory bird and diagrams, you must submit permit requirements? rehabilitation permit will not be valid if photographs and diagrams of your You may not take, possess, or you do not also possess and adhere to facilities as part of your renewal transport any bald eagle (Haliaeetus the terms of the required State application. If those facilities do not leucocephalus) or any golden eagle authorization, in addition to the Federal meet the criteria set forth under this (Aquila chrysaetos), or the parts, nests, permit. Nothing in this section prevents section, your permit may be renewed for or eggs of such birds, except as allowed a State from making and enforcing laws only 1 year. We will re-evaluate your by a valid permit issued under this part, or regulations consistent with this facilities when you seek renewal in a 50 CFR part 13, and/or 50 CFR part 21 section that are more restrictive or give year. If you have made the as provided by § 21.2, or authorized further protection to migratory birds. improvements necessary to bring your under a depredation order issued under (h) How long is a migratory bird facilities into compliance with subpart D of this part. * * * rehabilitation permit valid? Your paragraph (e)(1) of this section, and the * * * * * rehabilitation permit will expire on the other criteria within this section for permit issuance are met, your permit Dated: October 14, 2003. date designated on the face of the permit Paul Hoffman, unless amended or revoked. No may be renewed for up to the full 5-year tenure. Acting Assistant Secretary for Fish and (3) If your facilities have already been Wildlife and Parks, Department of the 2 You can obtain copies of this document by Interior. writing to the U.S. Fish and Wildlife Service, approved on the basis of photographs Division of Environmental Quality, 4401 North and diagrams, and authorized under a [FR Doc. 03–26823 Filed 10–24–03; 8:45 am] Fairfax Drive, MS 322, Arlington, VA, 22203. valid § 21.27 special purpose permit, BILLING CODE 4310–55–P

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