Migratory Bird Permits; Abatement Permit Regulations, 17374-17380 [2015-07387]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 80, Number 62 (Wednesday, April 1, 2015)]
[Proposed Rules]
[Pages 17374-17380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07387]



[[Page 17374]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 21

[Docket No. FWS-R9-MB-2009-0045; FF09M21200-134-FXMB1232099BPP0]
RIN 1018-AW75


Migratory Bird Permits; Abatement Permit Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We propose permit regulations to govern the use of captive-
bred, trained raptors to control or take birds or other wildlife to 
mitigate damage or other problems, including risks to human health and 
safety. This action would allow us to respond to increasing public 
interest in the use of trained raptors to haze (scare) depredating and 
other problem birds from airports and agricultural crops while 
maintaining our statutory responsibility to protect migratory birds.

DATES: There are two dates for submissions relevant to this proposed 
rule. Electronic comments on this proposed rule via https://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on 
June 30, 2015. Comments submitted by mail must be postmarked no later 
than June 30, 2015. Comments on the information collection must be 
submitted by May 1, 2015.

ADDRESSES: We are soliciting comments on two separate actions with 
different addresses: (1) A proposed rule, and (2) information 
collection. You may submit comments for the proposed regulation by 
either one of the following two methods:
     Federal eRulemaking portal: https://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R9-
MB-2009-0045.
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-R9-MB-2009-0045; Division of Policy and Performance 
Management; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS MB; 
Falls Church, VA 22041-3830.
    We will not accept email or faxes. We will post all comments on 
https://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.
    Submit comments on the information collection requirements to the 
Desk Officer for the Department of the Interior at Office of Management 
and Budget (OMB-OIRA) at (202) 395-5806 (fax) or 
OIRA_Submission@omb.eop.gov (email). Please provide a copy of your 
comments to the Service Information Collection Clearance Officer, U.S. 
Fish and Wildlife Service, 5275 Leesburg Pike, MS PPM, Falls Church, VA 
22041-3830 (mail), or Hope_Grey@fws.gov (email).

FOR FURTHER INFORMATION CONTACT: George Allen at 703-358-1825.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Fish and Wildlife Service (FWS or Service) is the Federal 
agency delegated the primary responsibility for managing migratory 
birds. This delegation is authorized by the Migratory Bird Treaty Act 
(MBTA, 16 U.S.C. 703 et seq.), which implements conventions with Great 
Britain (for Canada), Mexico, Japan, and the Soviet Union (Russia). We 
implement the provisions of the MBTA through regulations in parts 10, 
13, 20, 21, and 22 of title 50 of the Code of Federal Regulations 
(CFR). Regulations pertaining to migratory bird permits are at 50 CFR 
part 21; subpart C of part 21 contains regulations for specific permit 
provisions.
    In response to public interest in the use of trained raptors to 
haze depredating and other problem birds from airports and agricultural 
crops, we drafted a policy in 2007 to establish a migratory bird 
abatement permit. On January 12 of that year, we published a Federal 
Register notice containing draft permit conditions for abatement 
permits for public comment (72 FR 1556-1557). On December 10, 2007, we 
published a Federal Register notice (72 FR 69705-69706) announcing 
final permit conditions, accompanied by Migratory Bird Permit 
Memorandum Number 5, Abatement Activities Using Raptors, issued August 
22, 2007, available at https://www.fws.gov/migratorybirds/mbpermits/Memorandums/AbatementActivitiesUsingRaptors.pdf.
    The 2007 policy Memorandum and conditions have governed 
administration of Federal Migratory Bird Special Purpose Abatement 
(SPA) permits (Federal abatement permits) through the present time. The 
provisions for abatement in the Memorandum have worked well, but we 
have seen increased use of the Special Purpose permits, and the States 
have inquired about abatement activities that are not addressed in the 
Memorandum. Therefore, on July 6, 2011, we announced through an advance 
notice of proposed rulemaking (ANPR) that published in the Federal 
Register that we were considering developing regulations to govern the 
use of raptors in abatement (76 FR 39368).
    Most of the comments we received on the ANPR supported development 
of regulations for abatement. This proposed rule largely incorporates 
the conditions and procedures that governed abatement permits under the 
2007 Memorandum and language developed in response to the public 
comments. The permit that would be established under the proposed 
regulations would provide the public with a nonlethal management tool 
to mitigate problems caused by birds and other wildlife.

Proposed Permit Provisions

    An abatement permit would authorize the use of trained, captive-
bred raptors protected under the MBTA to abate problems caused by 
migratory birds or other wildlife. A permittee would have to be a 
Master falconer in good standing under the Federal falconry regulations 
(50 CFR 21.29). A Master falconer or a General falconer with 3 or more 
years of experience at the General falconer level would be allowed to 
conduct abatement activities as a subpermittee. We would issue 
abatement permits only to U.S. resident Master falconers.
    We would not limit the number of raptors an abatement permit holder 
may possess under a Federal abatement permit if the raptors are used in 
abatement and are maintained under humane and healthful conditions as 
required in 50 CFR 13.41, and if the permittee's facilities and 
equipment meet the standards in 50 CFR 21.29. We would require each 
captive-bred MBTA raptor held or used under an abatement permit to be 
banded with a seamless metal band issued by the Service, unless 
exempted because of problems caused by the band. State wildlife 
agencies may have additional requirements for maintaining raptors.
    The abatement permit holder would not be authorized to use birds he 
or she possesses under other types of permits for abatement activities, 
except that falconry birds could be used for abatement if no 
compensation is received for the service. The proposed regulations also 
would not allow a raptor held under a Federal abatement permit to be 
used for falconry.
    A Federal abatement permit, by itself, would not authorize the 
killing, injuring, or other take of migratory birds or other wildlife. 
Any take of protected migratory birds by an abatement permit holder 
must be authorized by hunting regulations, a Federal depredation

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order, or a depredation permit issued to the landowner. Harassment, 
disturbance, or other take of bald eagles (Haliaeetus leucocephalus), 
golden eagles (Aquila chrysaetos), or endangered or threatened species 
by an abatement permit holder would have to be authorized by the 
appropriate Federal permit. Abatement activities also would have to be 
conducted in accordance with any other applicable Federal, State, 
tribal, or municipal laws.
    Raptors that could be used for abatement under these proposed 
regulations include all native raptor species listed in 50 CFR 10.13 
except bald eagles and golden eagles. Included are falconiformes 
(forest-falcons, caracaras, and falcons); accipitriformes (vultures, 
osprey, kites, hawks, and eagles [except bald eagles and golden 
eagles]); and strigiformes (owls).
    Possession and use for abatement of exotic raptor species that are 
not on the list of MBTA-protected species at 50 CFR 10.13 is not 
regulated under the MBTA and is outside the scope of the proposed 
regulations. However, hybrid raptors of MBTA-protected species are 
subject to this proposed regulation.
    An applicant for a Federal abatement permit would have to complete 
and submit Service application form 3-200-79 (https://www.fws.gov/forms/3-200-79.pdf) to his or her Regional Migratory Bird Permit Office.

Permit Application Processing Fee

    We propose to charge a fee sufficient to offset the estimated costs 
associated with processing the application and annual reports and our 
periodic review of these permits. Revised Office of Management and 
Budget (OMB) circular A-25 directs Executive Branch agencies to recover 
costs, stating that, ``When a service (or privilege) provides special 
benefits to an identifiable recipient beyond those that accrue to the 
general public, a charge will be imposed (to recover the full cost to 
the Federal Government for providing the special benefit, or the market 
price).'' Further, Circular A-25 directs that, ``Except as provided in 
Section 6c, user charges will be sufficient to recover the full cost to 
the Federal Government (as defined in Section 6d) of providing the 
service, resource, or good when the Government is acting in its 
capacity as sovereign.'' Thus, the directive to the Service is to 
recover the costs for working with applicants to issue permits and to 
summarize reporting. We estimate that processing an abatement permit 
application will take up to 2 hours of a permit examiner's time (or 
about $101, on average) and \1/4\ hour of a permit supervisor's time 
(or about $18, on average) at current hourly rates. Our proposed 
processing fee of $150 should recover our costs for most permits for 
the next several years.

Issues From the ANPR

    We considered the comments on the advance notice of proposed 
rulemaking, and have drafted proposed regulations accordingly.
    Issue. Subpermittees should be allowed to conduct abatement 
activities outside the direct supervision of the SPA permit holder.
    Response. The proposed regulations would allow subpermittees 
(Master falconers and General falconers with 3 or more years of 
experience at the General falconer level) to conduct abatement. Direct 
supervision by the permittee would not be required.
    Issue. ``Limiting the species that should be authorized may 
encumber abatement activity. NAFA [North American Falconers 
Association] finds that often the species of bird used will depend on 
the species to be abated and the circumstances (i.e., gulls soaring 
over an airport may be best abated by using a falcon, where gulls 
roosting in an area may best be abated using a goshawk). . . Rabbits 
may be destroying crops and two of the best raptors for the abatement 
of rabbits are the red tailed hawk and Harris' hawk. Similarly, 
restricting the use of golden eagles may be short sighted. Canada geese 
present huge problems for abatement and the most effective species for 
use in abatement of the Canada goose may well be the golden eagle. The 
appropriate species of raptor to be used to conduct abatement should be 
the permittee's decision.''
    Response. In this proposed regulation, most MBTA-listed raptor 
species could be used in abatement. However, the Bald and Golden Eagle 
Protection Act (16 U.S.C. 668-668d) does not allow the use of bald 
eagles for falconry or abatement, and does not allow the use of golden 
eagles in abatement.
    Issue. The use of all falconry birds, including wild-caught birds, 
for abatement should be allowed. Falconry birds are trained in the same 
manner as abatement birds. There appears to be no substantial 
justification not to allow use of wild-caught falconry raptors in 
abatement operations.
    Response. We believe that using wild-caught raptors in commercial 
activities could conflict with the intent of Congress to protect wild 
populations of birds from commercial exploitation.
    Issue. Any person authorized by the primary permittee should be 
allowed to care for the birds, such as feeding, watering, and 
weathering, similar to the provisions found in 50 CFR 21.29(d)(7).
    Response. This proposed regulation allows this care of abatement 
raptors.
    Issue. Only Master falconers should be permitted for abatement; 
Master and general falconers should be allowed as subpermittees for 
both flying and caretaking of raptors.
    Response. This proposed regulation would allow other Master 
falconers and General falconers with 3 or more years of experience at 
the General falconer level to be subpermittees.
    Issue. The same housing and facilities standards under the Federal 
falconry regulations at 50 CFR 21.29 should be applied to abatement 
permits, including the defined temporary housing husbandry standards. 
Permit holders' facilities should be inspected and approved for use 
prior to issuance of the abatement permit as defined under the Federal 
falconry regulations.
    Response. This proposed regulation would require facilities and 
care as specified in the falconry regulations.
    Issue. We believe the proposed permitting process can be 
streamlined, more effectively described, and justified relative to the 
existing Federal and State falconry permitting system. A simplified 
process would be to permit abatement activities for State-permitted 
falconers within the framework of existing regulation rather than to 
establish stand-alone regulations under abatement permits. Such 
integration would reduce confusion and administrative complexity to the 
states.
    Response. Though we appreciate the concern about simplification of 
regulations, we do not believe it would be appropriate to regulate 
falconry and abatement under one set of regulations. Falconry is a 
recreational and sporting activity. Abatement requires the use of 
falconry techniques in caring for and training abatement raptors, but 
it is usually a commercial activity that often requires the possession 
and management of many more birds than falconry requires. In addition, 
though we expect all falconry permitting to be handled by the States 
after January 1, 2014, we do not expect abatement permitting to be done 
by all States.
    Issue. Several commenters wanted the Service to allow the use of 
falconry birds in abatement: ``The Service should allow the use of 
subpermittees' birds for abatement and for falconry. Hawks are best 
kept in shape and healthy by pursuing game when not actively doing 
abatement jobs. Raptors held under abatement permits should be able to 
conduct both activities to keep them fit.''

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    Issue. ``Subpermittees should only be allowed to use their own 
birds if they are master falconers. Allowing falconers to use their own 
birds would confound the requirement that abatement permit holders be 
master falconers. Master falconers have a higher level of experience 
and, thus, are more suited to accomplish abatement activities.''
    Issue. ``A subpermittee should be allowed to use captive-bred birds 
held on his or her falconry permit for abatement activities.''
    Response. We do not propose to allow birds held on abatement 
permits to be used for falconry. Further, while allowing abatement 
permittees and subpermittees to use falconry birds in abatement might 
have some value, we are concerned about potential enforcement 
difficulties for State and Federal law enforcement officers and about 
potential exploitation of the liberal possession limits for Master 
falconers under the falconry regulations. Under the proposed 
regulations, we would not allow the use of falconry birds in abatement.
    Issue. Falconers with abatement permits, and perhaps subpermittees, 
too, should be allowed to use their falconry birds for abatement.
    Response. For the reasons provided in the response above, and 
because of concerns about the use of wild-caught falconry birds for 
commercial purposes, these proposed regulations would not allow the use 
of falconry birds in abatement unless the permittee receives no 
compensation for the abatement services.
    Issue. The Memorandum's stipulation that hybrids be fitted with a 
minimum of two radio transmitters so that the birds may be tracked and 
recovered in the event they are lost is consistent with the federal 
falconry regulations. However, the notice does not include a like 
stipulation.
    Response. This proposed regulation would require that hybrids be 
fitted with a minimum of two radio transmitters.
    Issue. Species limits should follow State and Federal falconry 
regulations. If additional limits are imposed, then a resulting 
compliance issue will add a further level of complexity to State 
falconry management. Alternatively, raptors used in abatement 
activities could be banded with an FWS band as is required for a select 
number of species under the federal falconry regulations.
    Response. Conducting abatement might require many birds in order to 
address depredation issues. For example, conducting abatement at a 
large airport might require that a number of falcons be available to 
keep rested abatement birds in the air. A concurrent job might require 
the use of a number of buteos. Therefore, we do not propose to limit 
the number of raptors an abatement permittee may possess.
    Only captive-bred raptors would be allowed in abatement, and each 
would have to be banded with a seamless FWS band. We do not believe 
that additional banding is needed. The raptors could be purchased from, 
or sold or transferred to, authorized permittees.
    Issue. The abatement permit holder should be required to complete 
an annual report of all abatement activities, not limited to only those 
instances where take is involved as required in the Memorandum. Annual 
reports should include: Location, date, landowner/business owner 
information, raptors used, subpermittees, and other appropriate 
information for each abatement activity that is conducted within and 
outside the permit holder's state of residence.
    Response. An annual report that requires this information is 
included in the proposed regulations.
    Issue. ``I would like to see insurance become a part of the 
application process.''
    Response. Our authority allows us to require accurate recordkeeping 
of abatement activities and acquisition and disposition of raptors held 
under the permit. We do not believe we may put requirements for 
insurance or other aspects of the business operations for abatement 
activities into our migratory bird regulations.
    Issue. Contracts between permittees and subpermittees should be 
left unregulated. These contracts are beyond the scope of the MBTA. The 
birds are personal property and not of wild origin and beyond the scope 
of the FWS protecting migratory raptors.
    Response. We do not propose to be involved in the contracts between 
permittees and subpermittees. However, we disagree that captive-bred 
raptors are ``beyond the scope of the FWS protecting migratory 
raptors.'' Neither the statute nor the regulations excludes protections 
on the basis of whether the bird was taken from the wild or is captive-
bred. In fact, the definition of migratory bird in 50 CFR 10.12 ``means 
any bird, whatever its origin and whether or not raised in captivity, 
which belongs to a species listed in Sec.  10.13 . . .''

Public Comments

    You may submit your comments and supporting materials by one of the 
methods listed in ADDRESSES. We will not consider comments sent by 
email or fax, or written comments sent to an address other than the one 
listed in ADDRESSES. Comments and materials we receive, as well as 
supporting documentation we used in preparing this proposed rule, are 
available for public inspection at https://www.regulations.gov. We will 
post your entire comment--including your personal identifying 
information--on https://www.regulations.gov. You may request at the top 
of your document that we withhold personal information such as your 
street address, phone number, or email address from public review; 
however, we cannot guarantee that we will be able to do so.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small businesses, 
small organizations, and small government jurisdictions. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule would not have a significant economic

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impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. We have examined this proposed 
rule's potential effects on small entities as required by the 
Regulatory Flexibility Act and determined that this action would not 
have a significant economic impact on a substantial number of small 
entities because there are fewer than 100 abatement permittees in the 
United States. Consequently, we certify that because this proposed rule 
would not have a significant economic effect on a substantial number of 
small entities, a regulatory flexibility analysis is not required.
    This proposed rule is not a major rule under SBREFA (5 U.S.C. 
804(2)). It would not have a significant impact on any small entities.
    a. This proposed rule would not have an annual effect on the 
economy of $100 million or more.
    b. This proposed rule would not cause a major increase in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions.
    c. This proposed rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This proposed rule would not ``significantly or uniquely'' 
affect small governments. A small government agency plan is not 
required. The proposed regulations changes would not affect small 
government activities in any significant way.
    b. This proposed rule would not produce a Federal mandate of $100 
million or greater in any year. It is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with E.O. 12630, the rule would not have significant 
takings implications. This proposed rule contains no provision that 
could constitute taking of private property. Therefore, a takings 
implication assessment is not required.

Federalism

    This proposed rule would not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under E.O. 13132. It 
would not interfere with the States' abilities to manage themselves or 
their funds. No significant economic impacts are expected to result 
from the regulations change.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the rule would not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This proposed rule contains a new information collection for which 
Office of Management and Budget approval is required under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). We may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
OMB has reviewed and approved the collections of information for (1) 
applications for abatement and depredation permits, (2) annual 
reporting for depredation permits, and (3) reporting of acquisition and 
disposition of migratory birds. These information collections are 
covered by existing OMB Control No. 1018-0022, which will expire on 
February 28, 2017. OMB has also approved the recordkeeping and 
reporting associated with depredation orders and assigned OMB Control 
Numbers 1018-0022.
    We are asking OMB to approve the following new information 
collection requirements associated with this proposed rule:
     Each Abatement permittee must provide each of his or her 
subpermittees with a legible copy of his or her abatement permit and an 
original signed and dated letter designating the person as a 
subpermittee for part or all of the authorized activities (Sec.  
21.32(e)(2)(ii)).
     Each subpermittee must report take under a depredation 
order to the permit holder (Sec.  21.32(e)(2)(iii)(A)).
     Each permittees must maintain complete and accurate 
records of the activities conducted under the abatement permit, 
including, but not limited to: (1) The name and address of the property 
owner; (2) the location, date(s), and crop or property protected for 
each abatement job that permit holders and each of their subpermittees 
conduct; (3) the date, species, and location of any unintentional take 
that occurs; (4) the name, address, and falconry permit number of each 
subpermittee, and any subpermittee designation letters; (5) the raptors 
used for each job; (6) FWS form 3-186A for each acquisition and 
disposal of birds; and (7) documentation for acquisition and disposal 
of feathers. You must retain these records for 5 years following the 
end of the last calendar year covered by the records (Sec.  
21.32(e)(8)(ii) and (iii) and Sec.  21.32(e)(11)).
     Each permittee must submit an annual report to his or her 
migratory bird permit issuing office. The report must include the 
information required in Service form 3-202-22-2133 (Sec.  21.32(e)(11) 
and (12)).
    Title: Abatement Permit Reporting and Recordkeeping, 50 CFR 21.32.
    OMB Control Number: 1018-0022.
    Service Form Number: 3-202-22-2133.
    Description of Respondents: Master falconers conducting paid 
abatement or having subpermittees conduct paid abatement.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.

----------------------------------------------------------------------------------------------------------------
                                            Number of    Number of       Completion time per       Total annual
                 Activity                  respondents   responses             response            burden hours
----------------------------------------------------------------------------------------------------------------
Designation Letter (Sec.                           100          200  10 minutes.................         33\1/3\
 21.32(e)(2)(ii)).
Subpermittees Report of Take (Sec.                 200          200  1 hour.....................             200
 21.32(e)(2)(iii)(A)).
Recordkeeping (Sec.   21.32(e)(8)(ii) and          100          100  5 hours....................             500
 (iii) and Sec.   21.32(e)(11)).
Annual Reports (Sec.   21.32(e)(11) and            100          100  1 hours....................             100
 (12)).
                                          ----------------------------------------------------------------------
    Totals...............................          100          200  7 hours....................            ~833
----------------------------------------------------------------------------------------------------------------

    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of the reporting burden, including:

[[Page 17378]]

     Whether or not the collection of information is necessary, 
including whether or not the information will have practical utility;
     The accuracy of our estimate of the burden for this 
collection of information;
     Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
     Ways to minimize the burden of the collection of 
information on respondents.
    Send your comments and suggestions on this information collection 
to the Desk Officer for the Department of the Interior at OMB-OIRA at 
(202) 395-5806 (fax) or OIRA_Submission@omb.eop.gov (email). Please 
provide a copy of your comments to the Service Information Collection 
Clearance Officer, U.S. Fish and Wildlife Service, MS PPM, 5275 
Leesburg Pike, Falls Church, VA 22041-3830 (mail), or Hope_Grey@fws.gov 
(email).

National Environmental Policy Act

    We have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f). Using captive-
bred raptors in abatement would mean harassing wildlife to solve 
depredation or other wildlife problems. Because no raptors could be 
taken from the wild for this activity and take of migratory birds would 
not be authorized, this proposed regulation would have negligible 
environmental effects.
    Categorical exclusion Part 516 8.5(C)(1) in the Department of the 
Interior Manual is the following.

    The issuance, denial, suspension, and revocation of permits for 
activities involving fish, wildlife, or plants regulated under 50 
CFR Chapter 1, Subsection B, when such permits cause no or 
negligible environmental disturbance. These permits involve 
endangered and threatened species, species listed under the 
Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES), marine mammals, exotic birds, migratory 
birds, eagles, and injurious wildlife.

    Further, none of the extraordinary circumstances in 43 CFR 46.215 
apply to the proposed regulation. Therefore, the proposed regulation is 
categorically excluded from further NEPA evaluation.

Endangered and Threatened Species

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that the Secretary of the Interior 
use other programs in furtherance of the purposes of the ESA (16 U.S.C. 
1536(a)(1)). It also states that the Federal agency must ``insure that 
any action authorized, funded, or carried out . . . is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). This proposed rule 
would not affect endangered or threatened species or critical habitats. 
Abatement activities would not be allowed in circumstances where 
harassment or take of endangered or threatened species could occur. 
Take of endangered or threatened species would require an ESA permit.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have 
evaluated potential effects on federally recognized Indian tribes. We 
have determined that this proposed rule would not interfere with 
tribes' abilities to manage themselves, their funds, or tribal lands.

Energy Supply, Distribution, or Use (Executive Order 13211)

    E.O. 13211 addresses regulations that significantly affect energy 
supply, distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
rule is not a significant regulatory action under E.O. 13211, and no 
Statement of Energy Effects is required.

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must: (1) Be logically 
organized; (2) use the active voice to address readers directly; (3) 
use clear language rather than jargon; (4) be divided into short 
sections and sentences; and (5) use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

List of Subjects

50 CFR Part 13

    Administrative practice and procedure, Exports, Fish, Imports, 
Plants, Reporting and recordkeeping requirements, Transportation, 
Wildlife.

50 CFR Part 21

    Birds, Exports, Imports, Migratory Birds, Reporting and 
recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

    For the reasons described in the preamble, we propose to amend 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below.

PART 13--GENERAL PERMIT PROCEDURES

0
1. The authority citation for part 13 continues to read as follows:

    Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382, 
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 
1202; 31 U.S.C. 9701.

0
2. Amend the table in Sec.  13.11(d)(4) by adding an entry for 
``Migratory Bird Abatement'' immediately following the entry for 
``Migratory Bird Rehabilitation'' to read as follows.


Sec.  13.11  Application procedures.

* * * * *
    (d) * * *
    (4) User fees. * * *

[[Page 17379]]



----------------------------------------------------------------------------------------------------------------
                Type of permit                            CFR citation                  Fee        Amendment fee
----------------------------------------------------------------------------------------------------------------
                                            Migratory Bird Treaty Act
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Migratory Bird Abatement......................  50 CFR 21.......................             150              50
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 21--MIGRATORY BIRD PERMITS

0
3. The authority citation for part 21 continues to read as follows:

    Authority: 16 U.S.C. 703-712.

0
4. Amend Sec.  21.3 by adding a definition for ``Abatement'' in 
alphabetical order to read as follows:


Sec.  21.3  Definitions.

* * * * *
    Abatement as used in Sec.  21.32 means the use of a trained raptor 
to scare, flush, or haze wildlife to manage depredation or other 
damage, including threats to human health and safety, caused by the 
wildlife.
* * * * *
0
5. Amend Sec.  21.29 by revising paragraph (f)(11)(ii) and adding 
paragraph (f)(11)(iii) to read as follows:


Sec.  21.29  Falconry standards and falconry permitting.

* * * * *
    (f) * * *
    (11) * * *
    (ii) You may receive payment for providing abatement services if 
you have an abatement permit (see Sec.  21.32 of this subpart).
    (iii) You may conduct abatement without an abatement permit if you 
are not compensated for doing so.
* * * * *
0
6. Add Sec.  21.32 to read as follows:


Sec.  21.32  Abatement permit.

    (a) Authorization and scope. (1) An abatement permit authorizes 
possession and use of captive-bred raptors protected by the Migratory 
Bird Treaty Act to flush or haze (scare) birds or other wildlife to 
mitigate depredation or other damage, including threats to human health 
and safety.
    (2) An abatement permit does not authorize the take (such as 
capturing, killing, injuring, or collecting) of wildlife. Any take of 
federally protected wildlife must be authorized by a separate permit or 
regulation.
    (3) An abatement permit authorizes the purchase, sale, or barter of 
captive-bred raptors with seamless bands for abatement purposes.
    (4) An abatement permittee may charge for his or her services.
    (5) A permitted falconer may conduct abatement without an abatement 
permit if he or she is not compensated for doing so.
    (b) Qualification requirement. You must possess a valid U.S. Master 
falconer permit in accordance with Sec.  21.29 to qualify for an 
abatement permit.
    (c) Application procedures. You must apply to the appropriate 
Regional Migratory Bird Permit Office. You can find the addresses for 
the Regional Offices in Sec.  2.2 of subchapter A of this chapter. Your 
application package must include a completed application (FWS form 3-
200-79) and a copy of your Master falconer permit. You must apply as an 
individual, but you may include the name of the company under which you 
are doing business.
    (d) Issuance criteria. Upon receiving a complete application, the 
Permit Office will decide whether to issue you a permit based on the 
general criteria of Sec.  13.21 of this chapter and whether you hold a 
valid U.S. Master falconer permit.
    (e) Permit conditions. In addition to the general permit conditions 
set forth in part 13 of this chapter, abatement permittees are subject 
to the following conditions:
    (1) An abatement permit is valid only if your Master falconer 
permit is valid.
    (2) Subpermittees. We allow certain activities to be carried out by 
subpermittees as follows:
    (i) Except as provided in paragraph (e)(2)(v) of this section, only 
a Master falconer or a General falconer with 3 or more years of 
experience at the General falconer level may be a subpermittee under 
your abatement permit and conduct abatement activities on your behalf. 
You are responsible for all activities conducted under your abatement 
permit.
    (ii) You must provide each subpermittee with a legible copy of your 
permit and an original signed and dated letter designating the person 
as a subpermittee for part or all of the authorized activities.
    (iii) Each subpermittee must carry and display a copy of your 
abatement permit, the designation letter, and a copy of their valid 
falconry permit when conducting abatement activities under your permit.
    (iv) You are responsible for maintaining current records of who you 
have designated as a subpermittee, including copies of the designation 
letters you have provided.
    (v) If your State allows it, you may designate an individual who is 
not a falconer to provide care for raptors held under your abatement 
permit.
    (3) Taking protected wildlife. Any take of federally protected 
wildlife by an abatement permit holder must be authorized by:
    (i) Hunting regulations in effect at the time that the take occurs;
    (ii) A Federal depredation order; or
    (iii) A Federal depredation permit or other Federal permit that 
identifies you as a subpermittee.
    (A) You must report take under a depredation order as required by 
the order. You must report all take as a subpermittee on a depredation 
permit to the permit holder.
    (B) You may not flush, haze, harm, harass, disturb, kill or injure 
endangered or threatened species, bald eagles (Haliaeetus 
leucocephalus), or golden eagles (Aquila chrysaetos) unless the 
activity is specifically authorized by an Endangered Species Act permit 
or Bald and Golden Eagle Protection Act permit.
    (C) You must immediately report any unauthorized take of federally 
protected wildlife, disturbance of bald eagles or golden eagles, or 
harassment of endangered species to the appropriate Service Regional 
Law Enforcement office. You can find the addresses for the offices at 
https://www.fws.gov/le/regional-law-enforcement-offices.html.
    (4) Abatement raptors. (i) A raptor used for abatement must be 
captive-bred and banded with a seamless band issued by the Service. You 
may not use wild-caught raptors in abatement. You may purchase the 
raptors from, or sell or transfer them to, any permittee authorized to 
possess them.

[[Page 17380]]

    (ii) You and your subpermittees may use only raptors that you 
possess under your abatement permit in abatement.
    (iii) We do not limit the number of captive-bred raptors that you 
may hold under your abatement permit, but each bird must be used for 
abatement.
    (iv)You may possess and use any captive-bred falconiform, 
accipitriform, or strigiform species listed in Sec.  10.13 of this 
chapter (including a hybrid) in abatement, except that you may not 
possess or use a bald eagle or golden eagle for abatement.
    (v) A subpermittee may use only species that he or she is 
authorized to possess under his or her falconry permit.
    (5) Facilities and care requirements. You must house and maintain 
raptors that you hold under your abatement permit in accordance with 
the Federal falconry regulations housing and care requirements (see 
Sec.  21.29).
    (6) Using a hybrid raptor in abatement. When flown free in 
abatement, a hybrid raptor must have attached at least two functioning 
radio transmitters to ensure that you can locate the bird.
    (7) Acquisition, transfer, or loss of abatement raptors. You must 
report acquisition and disposition of a raptor under your abatement 
permit by submitting Service form 3-186A (the Migratory Bird 
Acquisition and Disposition Report) completed in accordance with the 
instructions on the form and filed by you and the recipient, if 
applicable, to your migratory bird permit issuing office.
    (8) Feathers molted by an abatement bird.--(i) Imping. For imping 
(replacing a damaged feather with a molted feather), you may possess 
tail feathers and primary and secondary wing feathers for each species 
of raptor that you possess or previously held under your abatement 
permit for as long as you have a valid abatement permit.
    (ii) Donating. You may donate molted feathers to any entity with a 
valid permit to acquire and possess them, or to an entity exempt from 
the permit requirement under Sec.  21.12. You may not buy, sell, or 
barter the feathers. You must keep the documentation for your 
acquisition and disposal of the feathers.
    (iii) Receiving. You may receive feathers for imping purposes from 
any entity authorized to donate them to you. You may not buy, sell, or 
barter the feathers. You must keep the documentation for your 
acquisition and disposal of the feathers.
    (9) Disposition of carcasses of abatement birds that die. You may 
donate the carcass, feathers, or parts of any deceased raptor held 
under your abatement permit to any entity authorized to acquire and 
possess it.
    (10) Prey items. If your abatement bird kills an animal without 
your intent, including wildlife taken outside of a regular hunting 
season, you may allow your abatement bird to feed on the animal, but 
you may not take the animal into your possession. You must report the 
take in your annual report.
    (11) Recordkeeping. You must maintain complete and accurate records 
of the activities conducted under your abatement permit, including, but 
not necessarily limited to, the name and address of the property owner; 
the location, date(s), and crop or property protected for each 
abatement job that you and each of your subpermittees conduct; the 
date, species, and location of any unintentional take that occurs; the 
name, address, and falconry permit number of each of your 
subpermittees, and any subpermittee designation letters; the raptors 
used for each job; and FWS form 3-186As for each acquisition and 
disposal of birds. You must retain these records for 5 years following 
the end of the last calendar year covered by the records.
    (12) Annual report. You must submit an annual report to your 
migratory bird permit issuing office. Your report must include the 
information required in Service form 3-202-22-2133, which is available 
at www.fws.gov/forms/3-202-2133.pdf.
    (13) Inspections. Agents or employees of the Service may inspect 
your abatement raptors, facilities, equipment, and records in your 
presence at any reasonable hour on any day of the week.
    (f) Permit tenure. Your abatement permit will expire on the date 
designated on the face of the permit unless amended or revoked. No 
abatement permit will have a term of more than 5 years.
    (g) Acquisitions, transfers, and losses of abatement raptors. You 
must have a copy of a properly completed FWS Form 3-186A (Migratory 
Bird Acquisition and Disposition Report) for each raptor you acquire 
transfer, or lose, or that dies.

    Dated: March 17, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-07387 Filed 3-31-15; 8:45 am]
BILLING CODE CODE 4310-55-P