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Title 50 – Wildlife and Fisheries–Volume 9

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Title 50 – Wildlife and Fisheries–Volume 9


Part


chapter i – United States Fish and Wildlife Service, Department of the Interior (Continued)

18

CHAPTER I – UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR (CONTINUED)

SUBCHAPTER B – TAKING, POSSESSION, TRANSPORTATION, SALE, PURCHASE, BARTER, EXPORTATION, AND IMPORTATION OF WILDLIFE AND PLANTS (CONTINUED)

PART 18 – MARINE MAMMALS


Authority:16 U.S.C. 1361 et seq.


Source:39 FR 7262, Feb. 25, 1974, unless otherwise noted.

Subpart A – Introduction

§ 18.1 Purpose of regulations.

The regulations contained in this part implement the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407), which among other things, restricts the taking, possession, transportation, selling, offering for sale, and importing of marine mammals.


§ 18.2 Scope of regulations.

(a) This part 18 applies solely to marine mammals and marine mammal products as defined in § 18.3. For regulations under the Act with respect to cetacea (whales and porpoises), pinnipedia, other than walrus (seals and sea lions), see 50 CFR part 216.


(b) The provisions in this part are in addition to, and are not in lieu of, other regulations of this subchapter B which may require a permit or prescribe additional restrictions or conditions for the importation, exportation, and interstate transportation of wildlife. (See also part 13 of this subchapter.)


§ 18.3 Definitions.

In addition to definitions contained in section 3 of the Act and in part 10 of this subchapter, and unless the context requires otherwise, in this part 18:


Act means the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407; Pub. L. 92-522.


Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. section 1603(b) (85 Stat. 588)) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including Tsimshian Indians enrolled or not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood, or combination thereof. The term includes any Native, as so defined, either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or town of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any Native village or Native town. Any citizen enrolled by the Secretary pursuant to section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be an Alaskan Native for purposes of this part.


Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut, or Eskimo that (a) are composed wholly or in some significant respect of natural materials and (b) are significantly altered from their natural form and are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass-copying devices. Improved methods of production utilizing modern implements such as sewing machines or modern techniques at a tannery registered pursuant to § 18.23(c) may be used so long as no large-scale mass-production industry results. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as cooperatives, is permitted so long as no large-scale mass production results.


Commercial fishing operation means the lawful harvesting of fish from the marine environment for profit as part of an on-going business enterprise. Such term shall not include sport fishing activities whether or not carried out by charter boat or otherwise, and whether or not the fish so caught are subsequently sold.


Endangered species means a species of marine mammal listed as “endangered” pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205 (see part 17 of this subchapter).


Incidental catch means the taking of a marine mammal (a) because it is directly interfering with commercial fishing operations, or (b) as a consequence of the steps used to secure the fish in connection with commercial fishing operations: Provided, however, That a marine mammal so taken must immediately be returned to the sea with a minimum of injury; and Provided, further, That the taking of a marine mammal which otherwise meets the requirements of this definition shall not be considered as incidental catch of that mammal if it is used subsequently to assist in commercial fishing operations.


Marine mammal means any specimen of the following species, whether alive or dead, and any part thereof, including but not limited to, any raw, dressed, or dyed fur or skin:


Scientific name
Common name
Date listed
Ursus maritimusPolar bearDec. 21, 1972.
Enhydra lutrisSea otter Do.
Odobenus rosmarusWalrus Do.
Dugong dugonDugong Do.
Trichechus manatusWest Indian manatee Do.
Trichechus inunguisAmazonian manatee Do.
Trichechus senegalensisWest African manatee Do.
Lutra felinaMarine otterMar. 29, 1978.

Note: Common names given may be at variance with local usage.


Native village or town means any community, association, tribe, band, clan, or group.


Pregnant means pregnant near term.


Subsistence means the use by Alaskan Natives of marine mammals taken by Alaskan Natives for food, clothing, shelter, heating, transportation, and other uses necessary to maintain the life of the taker or for those who depend upon the taker to provide them with such subsistence.


Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal, including, without limitation, any of the following: The collection of dead animals or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; or the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in the disturbing or molesting of a marine mammal.


Threatened species means a species of marine mammal listed as “threatened” pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205.


Wasteful manner means any taking or method of taking which is likely to result in the killing or injuring of marine mammals beyond those needed for subsistence purposes or for the making of authentic native articles of handicrafts and clothing or which results in the waste of a substantial portion of the marine mammal and includes without limitation the employment of a method of taking which is not likely to assure the capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to retrieve the marine mammal.


[39 FR 7262, Feb. 25, 1974, as amended at 43 FR 13066, Mar. 29, 1978; 55 FR 14978, Apr. 20, 1990; 70 FR 48323, Aug. 17, 2005]


§ 18.4 Information collection requirements.

(a) The Office of Management and Budget under 44 U.S.C. 3501 et seq. has approved the information collection requirements contained in Subpart D and assigned clearance number 1018-0022. The Service is collecting this information to review and evaluate permit applications and make decisions according to criteria established in various Federal wildlife conservation statutes and regulations, on the issuance or denial of permits. The applicant must respond to obtain or retain a permit.


(b) The Service estimated the public reporting burden for this collection of information to vary from 15 minutes to 4 hours per response, with an average of 1.028 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden or any other aspect of this collection of information, including suggestions for reducing the burden, to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[62 FR 7329, Feb. 18, 1997, as amended at 79 FR 43965, July 29, 2014]


Subpart B – Prohibitions

§ 18.11 Prohibited taking.

Except as otherwise provided in subpart C, D, or H of this part 18, or part 403, it is unlawful for:


(a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or


(b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States.


[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]


§ 18.12 Prohibited importation.

(a) Except as otherwise provided in subparts C and D of this part 18, it is unlawful for any person to import any marine mammal or marine mammal product into the United States.


(b) Regardless of whether an importation is otherwise authorized pursuant to subparts C and D of this part 18, it is unlawful for any person to import into the United States any:


(1) Marine mammal: (i) Taken in violation of the Act, or


(ii) Taken in another country in violation of the laws of that country;


(2) Any marine mammal product if: (i) The importation into the United States of the marine mammal from which such product is made would be unlawful under paragraph (b)(1) of this section, or


(ii) The sale in commerce of such product in the country of origin of the product is illegal.


(c) Except in accordance with an exception referred to in subpart C and §§ 18.31 and 18.32 of this part, it is unlawful to import into the United States any:


(1) Marine mammal which was pregnant at the time of taking;


(2) Marine mammal which was nursing at the time of taking, or less than 8 months old, whichever occurs later;


(3) Specimen of an endangered or threatened species of marine mammals;


(4) Specimen taken from a depleted species or stock of marine mammals; or


(5) Marine mammal taken in an inhumane manner.


(d) It is unlawful to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner proscribed by the Secretary of Commerce for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.


§ 18.13 Prohibited uses, possession, transportation, and sales.

Except as otherwise provided in the Act or these regulations, it is unlawful for:


(a) Any person to use any port, harbor, or other place under the jurisdiction of the United States for any purpose in any way connected with a prohibited taking or any unlawful importation of any marine mammal or marine mammal products;


(b) Any person to possess any marine mammal, or product therefrom, taken in violation of the Act or these regulations;


(c) Any person to transport, purchase, sell, or offer to purchase or sell any marine mammal or marine mammal product; or


(d) Any person subject to the jurisdiction of the United States to use in a commercial fishery, any means or method of fishing in contravention of regulations and limitations issued by the Secretary of Commerce for that fishery to achieve the purposes of this Act.


[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]


§ 18.14 Marine mammals taken before the Act.

(a) Section 102(e) of the Act provides in effect that the Act shall not apply to any marine mammal taken prior to December 21, 1972, or to any marine mammal product consisting of, or composed in whole or in part of, any marine mammal taken before such date. Such status may be established by submitting to the Director prior to, or at the time of importation, an affidavit containing the following:


(1) The Affiant’s name and address;


(2) Identification of the Affiant;


(3) A description of the marine mammals or marine mammal products which the Affiant desires to import;


(4) A statement by the Affiant that to the best of his knowledge and belief, the marine mammals involved in the application were taken prior to December 21, 1972;


(5) A statement by the Affiant in the following language:



The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief, are complete, true and correct. I understand that this affidavit is being submitted for the purpose of inducing the Federal Government to permit the importation of _____ under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407) and regulations promulgated thereunder, and that any false statements may subject me to the criminal penalties of 18 U.S.C. 1001.


(b) Either one of two exhibits shall be attached to such affidavit, and will contain either:


(1) Records or other available evidence showing that the product consists of or is composed in whole or in part of marine mammals taken prior to December 21, 1972. Such records or other evidentiary material must include information on how, when, where, and by whom the animals were taken, what processing has taken place since taking, and the date and location of such processing; or


(2) A statement from a government agency of the country of origin exercising jurisdiction over marine mammals that any and all such mammals from which the products sought to be imported were derived were taken prior to December 21, 1972.


(c) Service agents, or Customs officers, may refuse to clear marine mammals or marine mammal products for importation into the United States, pursuant to § 14.53 of this subchapter, until the importer can demonstrate, by production of the affidavit referred in above or otherwise, that section 102(e) of the Act applies to all affected items.


(d) This section has no application to any marine mammal or marine mammal product intended to be imported pursuant to § 18.21, § 18.31 or § 18.32 of this part.


[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]


Subpart C – General Exceptions

§ 18.21 Actions permitted by international treaty, convention, or agreement.

The Act and these regulations shall not apply to the extent that they are inconsistent with the provisions of any international treaty, convention or agreement, or any statute implementing the same, relating to the taking or importation of marine mammals or marine mammal products, which was existent and in force prior to December 21, 1972, and to which the United States was a party. Specifically, the regulations in subpart B of this part and the provisions of the Act shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed in Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 1151-1187, as, in each case, from time to time amended.


§ 18.22 Taking by Federal, State or local government officials.

(a) A Federal, State or local government official or employee may take a marine mammal in the course of his duties as an official or employee and no permit shall be required, if such taking:


(1) Is accomplished in a humane manner;


(2) Is for the protection or welfare of such mammal or from the protection of the public health or welfare; and


(3) Includes steps designed to insure return of such mammal, if not killed in the course of such taking, to its natural habitat. In addition, any such official or employee may, incidental to such taking, possess and transport, but not sell or offer for sale, such mammal and use any port, harbor or other place under the jurisdiction of the United States. All steps reasonably practicable under the circumstances shall be taken by any such employee or official to prevent injury or death to the marine mammal as the result of such taking.


(b) Each taking permitted under this section should be included in a written report, to be submitted to the Director every six months, beginning December 31, 1973. Unless otherwise permitted by the Director, the report shall contain a description of:


(1) The animal involved;


(2) The circumstances requiring the taking;


(3) The method of taking;


(4) The name and official position of the State official or employee involved;


(5) The disposition of the animal, including in cases where the animal has been retained in captivity, a description of the place and means of confinement and the measures taken for its maintenance and care; and


(6) Such other information as the Director may require.


The reports shall be mailed to the Director, U.S. Fish and Wildlife Service, U.S. Department of the Interior, Washington, DC 20240.

[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]


§ 18.23 Native exemptions.

(a) Taking. Except as otherwise provided in part 403 of this title, any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean may take any marine mammal without a permit, subject to the restrictions contained in this section, if such taking is:


(1) For subsistence purposes, or


(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and


(3) In each case, not accomplished in a wasteful manner.


(b) Restrictions. (1) “Except for a transfer to a duly authorized representative of the Regional Director of the U.S. Fish and Wildlife Service for scientific research purposes, no marine mammal taken for subsistence may be sold or otherwise transferred to any person other than an Alaskan Native or delivered, carried, transported, or shipped in interstate or foreign commerce, unless:


(i) It is being sent by an Alaskan Native directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Alaskan Native; or


(ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan Native; or


(iii) It is an edible portion and it is sold in an Alaskan Native village or town.


(2) “Except for a transfer to a duly authorized representative of the Regional Director of the U.S. Fish and Wildlife Service for scientific research purposes, no marine mammal taken for purposes of creating and selling authentic Native articles of handicraft and clothing may be sold or otherwise transferred to any person other than an Indian, Aleut or Eskimo, or delivered, carried, transported or shipped in interstate or foreign commerce, unless:


(i) It is being sent by an Indian, Aleut or Eskimo directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Indian, Aleut or Eskimo; or


(ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo; or


(iii) It has been first transformed into an authentic Native article of handicraft or clothing; or


(iv) It is an edible portion and it is sold (A) in an Alaskan Native village or town or (B) to an Alaskan Native for his consumption.


(c) The restriction in paragraph (b) shall not apply to parts or products of the Pacific walrus (Odobenis rosmarus) to the extent that the waiver of the moratorium and the approved State/Federal regulations relating to the taking and importation of walrus permits the delivery, sale, transportation or shipment of parts or products of the Pacific walrus in interstate or foreign commerce.


(d) Any tannery, or person who wishes to act as an agent, within the jurisdiction of the United States may apply to the Director for registration as a tannery or an agent which may possess and process marine mammal products for Indians, Aleuts, or Eskimos. The application shall include the following information:


(1) The name and address of the applicant;


(2) A description of the applicant’s procedures for receiving, storing, processing, and shipping materials;


(3) A proposal for a system of bookkeeping and/or inventory segregation by which the applicant could maintain accurate records of marine mammals received from Indians, Aleuts, or Eskimos, pursuant to this section;


(4) Such other information as the Director may request;


(5) A certification in the following language:



I hereby certify that the foregoing information is complete, true, and correct to the best of my knowledge and belief. I understand that this information is submitted for the purpose of obtaining the benefit of an exception under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407) and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001.


(6) The signature of the applicant.


The sufficiency of the application shall be determined by the Director, and in that connection, he may waive any requirement for information, or require any elaboration or further information deemed necessary. The registration of a tannery or other agent shall be subject to the conditions as the Director prescribes, which may include, but are not limited to provisions regarding records, inventory segregation, reports, and inspection. The Director may charge a reasonable fee for such applications, including an appropriate apportionment of overhead and administrative expenses of the Department of Interior.

(e) Notwithstanding the preceding provisions of this section, whenever, under the Act, the Secretary determines any species or stock of marine mammals to be depleted, he may prescribe regulations pursuant to section 103 of the Act upon the taking of such marine mammals by any Indian, Aleut, or Eskimo and, after promulgation of such regulations, all takings of such marine mammals by such person shall conform to such regulations.


(f) Marking, tagging, and reporting. (1) In addition to definitions contained in the Act, 50 CFR 18.3, and 50 CFR 18.27, in this paragraph (f):


(i) The term “marking and tagging” of marine mammals as specified in section 109(i) of the Act refers to the actual physical attachment of an approved band or other such marking device or technique to the raw or unhandicrafted (including unmarked tanned skins) skin and skull of polar bears, the tusks of walruses, and the skin and skull of sea otters; and


(ii) The term “reporting” means the collection by Service personnel or the Service’s authorized local representatives of biological data, harvest data, and other information regarding the effect of taking of marine mammals on populations, the collection of which the Service determines to be necessary for management purposes. Reporting will be done on forms provided by the Service upon presentation for marking, tagging, and reporting purposes of the marine mammal(s) or specified raw or unhandicrafted parts thereof.


(2) Notwithstanding the preceding provisions of this section, but subject to the provisions and conditions contained in this paragraph, no polar bear, walrus, or sea otter, or any parts thereof, taken or collected by an Alaskan Native for subsistence purposes or for purposes of creating and selling authentic Native articles of handicrafts and clothing may be possessed, transported within, or exported from Alaska unless the animal(s), or specified parts thereof, have been reported to, and properly marked and tagged by, Service personnel or the Service’s authorized local representative; except:


(i) An Alaskan Native that harvested or participated in the harvest of a polar bear, sea otter, or walrus and who possesses the animal, or any parts thereof, may possess the unmarked, untagged, and unreported animal(s), or parts thereof, for a period of time not to exceed 30 days from the time of taking for the purpose of transporting the specified parts to Service personnel or the Service’s local authorized representative for marking, tagging, and reporting;


(ii) Alaskan Natives and registered agents/tanneries may possess the specified unmarked or untagged raw, unhandicrafted, or tanned parts thereof for a period of time not to exceed 180 days from the effective date of this rulemaking for the purpose of transporting to Service personnel or the Service’s local authorized representative for marking and tagging if the specified parts thereof were taken or possessed between December 21, 1972, and the effective date of this regulation. There is no reporting requirement for marine mammals, or specified parts thereof, covered by this paragraph.


(3) Those unmarked, untagged, and unreported specified parts of polar bear, walrus, and sea otter, that must be presented to Service personnel or an authorized Service representative for marking, tagging, and reporting are as follows:


(i) Polar bear – skin and skull.


(ii) Walrus – tusks.


(iii) Sea otter – skin and skull.


(4) The locations where Service personnel or the Service’s authorized local representative will be available for marking, tagging, and reporting purposes will be announced annually by the Alaska Regional Director. Local persons authorized to act as representatives for marking, tagging, and reporting purposes in the absence of Service personnel will also be announced annually by the Alaska Regional Director.


(5) Marks and tags will be attached or applied to the skins, skulls, and tusks of the marine mammal(s) in such a manner as to maximize their longevity and minimize their adverse effects to the appearance of the specified parts that might result due to hindering the tanning or handicrafting of skins, or the handicrafting of tusks or skulls. If the tag or mark comes off of the specified part the person in possession of the part shall have 30 days to present the part and broken tag or other marking device to the Service or the Service’s authorized local representative for remarking or retagging purposes.


(6) Marks and tags for skins, skulls, and tusks will be provided by the Service. They will be numbered for accountability and of such design, construction, and material so as to maximize their durability and longevity on the specified parts.


(7) Data collected pursuant to this paragraph will be reported on forms provided by the Service and maintained in the Service’s Regional Office, Anchorage, Alaska. The Service will summarize the data annually and make it publicly available. The data will also be included in the Service’s annual report to Congress as set forth in section 103(f) of the Act.


(8) All items of research (e.g., radio collars, satellite transmitters, tags, etc.) that were attached to animals taken by Alaskan Natives must be returned to Service personnel or an authorized Service representative at the time the animal, or specified unhandicrafted parts thereof, are presented for marking, tagging, and reporting. No penalty will be imposed under the Act for a violation of this paragraph. However, penalties may be sought by the Service under other applicable Federal laws governing the possession and use of Federal property.


(9) Pursuant to this paragraph (f), the following specific conditions and provisions apply:


(i) Marking, tagging, and reporting of polar bears or specified parts thereof.


(A) The skin and skull of an animal must accompany each other when presented for marking, tagging, and reporting except that the skin and skull of an animal need not be presented together for marking and tagging purposes if taken between December 21, 1972, and the effective date of this regulation.


(B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alaskan Natives when presenting polar bears, or specified parts thereof, for marking and tagging: sex of animal, date of kill, and location of kill.


(C) Both the skin and the skull will be marked and tagged and a rudimentary pre-molar tooth may be removed from the skull and retained by the Service. The skin must have the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin.


(D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, penal sheath or baculum, must be visible.


(E) Marks and tags must remain affixed to the skin through the tanning process and until the skin has been severed into parts for crafting into handicrafts or for as long as is practical during the handicrafting process.


(ii) Marking, tagging, and reporting of walrus or specified parts thereof.


(A) The paired tusks of the animal(s) must, to the maximum extent practical, accompany each other when presented for marking, tagging, and reporting purposes, except that paired tusks need not be presented together for marking and tagging purposes if taken between December 21, 1972, and the effective date of this regulation.


(B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alaskan Natives when presenting walrus, or specified parts thereof, for marking and tagging: date of take, sex of animal, whether live-killed, floating-dead, or beach-found, and location of the take or location of animal if found floating and dead or beach-found.


(C) Marks and/or tags must remain affixed to the tusks until they have been crafted into a handicraft or for as long as is practical during the handicrafting process.


(iii) Marking, tagging, and reporting of sea otter or specified parts thereof.


(A) The skin and skull of an animal must accompany each other when presented for marking, tagging, and reporting, except that the skin and skull of an animal need not be presented together if taken between December 21, 1972, and the effective date of this regulation.


(B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alaskan Natives when presenting sea otters, or specified parts thereof, for marking and tagging: date of kill, sex of animal, and location of kill.


(C) Both the skin and skull will be marked and tagged and a rudimentary pre-molar tooth may be removed from the skull and retained by the Service. The skin must have the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin.


(D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, must be visible.


(E) Marks and tags must remain affixed to the skin through the tanning process and until the skin has been severed into parts for crafting into handicrafts or for as long as is practical during the handicrafting process.


(10) No person may falsify any information required to be set forth on the reporting form when the marine mammal(s), or specified parts thereof, are presented as required by these regulations.


(11) Possession by any person of marine mammal(s), or any parts thereof, in violation of the provisions and conditions of this § 18.23(f) is subject to punishment under the penalties provided for in section 105(a)(1) of the Act.


(12) The information collection requirements contained in this § 18.23(f) have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1018-0066. The information is mandatory in order to have the marine mammal parts “marked and tagged,” and thereby made eligible for continued lawful possession. Non-response may result in the Service determining the wildlife to be illegally possessed and subject the individual to penalties under this title.


[39 FR 7262, Feb. 25, 1974, as amended at 40 FR 59444, Dec. 24, 1975; 45 FR 54057, Aug. 14, 1980; 51 FR 17981, May 16, 1986; 53 FR 24283, June 28, 1988]


§ 18.24 Taking incidental to commercial fishing operations.

Persons may take marine mammals incidental to commercial fishing operations until October 21, 1974: Provided, That such taking is by means of equipment and techniques prescribed in regulations issued by the Secretary of Commerce. However, any marine mammal taken as an incidental catch may not be retained. It shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.


§ 18.25 Exempted marine mammals or marine mammal products.

(a) The provisions of the Act and these regulations shall not apply:


(1) To any marine mammal taken before December 21, 1972, or


(2) To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date.


(b) The prohibitions contained in § 18.12(c) (3) and (4) shall not apply to marine mammals or marine mammal products imported into the United States before the date on which notice is published in the Federal Register of the proposed rulemaking with respect to the designation of the species of stock concerned as depleted or endangered:


(c) Section 18.12(b) shall not apply to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful.


§ 18.26 Collection of certain dead marine mammal parts.

(a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within
1/4 of a mile of the ocean. The term “ocean” includes bays and estuaries.


(b) Marine mammal parts so collected may be retained if registered within 30 days with an agent of the National Marine Fisheries Service, or an agent of the U.S. Fish and Wildlife Service.


(c) Registration shall include (1) the name of the owner, (2) a description of the article to be registered and (3) the date and location of collection.


(d) Title to any marine mammal parts collected under this section is not transferable, unless consented to in writing by the agent referred to in paragraph (b) of this section.


[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]


§ 18.27 Regulations governing small takes of marine mammals incidental to specified activities.

(a) Purpose of regulations. The regulations in this section implement Section 101(a)(5) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, during periods of not more than five consecutive years each, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region.


(b) Scope of regulations. The taking of small numbers of marine mammals under section 101(a)(5) of the Marine Mammal Protection Act may be allowed only if the Director of the Fish and Wildlife Service (1) finds, based on the best scientific evidence available, that the total taking during the specified time period will have a negligible impact on the species or stock and will not have an unmitigable adverse impact on the availability of the species or stock for subsistence uses; (2) prescribes regulations setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and (3) prescribes regulations pertaining to the monitoring and reporting of such taking.



Note:

The information collection requirement contained in this § 18.27 has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance No. 1018-0070. The information is being collected to describe the activity proposed and estimate the cumulative impacts of potential takings by all persons conducting the activity. The information will be used to evaluate the application and determine whether to issue Specific Regulations and, subsequently, Letters of Authorization. Response is required to obtain a benefit.


The public reporting burden from this requirement is estimated to vary from 2 to 200 hours per response with an average of 10 hours per response including time for reviewing instructions, gathering and maintaining data, and completing and reviewing applications for specific regulations and Letters of Authorization. Direct comments regarding the burden estimate or any other aspect of this requirement to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


(c) Definitions. In addition to definitions contained in the Act and in 50 CFR 18.3 and unless the context otherwise requires, in this section:


Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13). U.S. Federal, State and local government agencies shall also constitute citizens of the United States for purposes of this section.


Incidental, but not intentional, taking means takings which are infrequent, unavoidable, or accidental. It does not mean that the taking must be unexpected. (Complete definition of take is contained in 50 CFR 18.3.)


Negligible impact is an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.


Small numbers means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.


Specified activity means any activity, other than commercial fishing, which takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals. The specified activity and specified geographical region should be identified so that the anticipated effects on marine mammals will be substantially similar.


Specified geographical region means an area within which a specified activity is conducted and which has similar biogeographic characteristics.


Unmitigable adverse impact means an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.


(d) Submission of requests. (1) In order for the Fish and Wildlife Service to consider allowing the taking by U.S citizens of small numbers of marine mammals incidental to a specified activity, a written request must be submitted to the Director, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240. Requests shall include the following information on the activity as a whole, which includes, but is not limited to, an assessment of total impacts by all persons conducting the activity:


(i) A description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals;


(ii) The dates and duration of such activity and the specific geographical region where it will occur;


(iii) Based upon the best available scientific information;


(A) An estimate of the species and numbers of marine mammals likely to be taken by age, sex, and reproductive conditions, and the type of taking (e.g., disturbance by sound, injury or death resulting from collision, etc.) and the number of times such taking is likely to occur;


(B) A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks likely to be affected by such activities;


(C) The anticipated impact of the activity upon the species or stocks;


(D) The anticipated impact of the activity on the availability of the species or stocks for subsistence uses;


(iv) The anticipated impact of the activity upon the habitat of the marine mammal populations and the likelihood of restoration of the affected habitat;


(v) The anticipated impact of the loss or modification of the habitat on the marine mammal population involved;


(vi) The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and, where relevant, on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. (The applicant and those conducting the specified activity and the affected subsistence users are encouraged to develop mutually agreeable mitigating measures that will meet the needs of subsistence users.);


(vii) Suggested means of accomplishing the necessary monitoring and reporting which will result in increased knowledge of the species through an analysis of the level of taking or impacts and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity; and


(viii) Suggested means of learning of, encouraging, and coordinating research opportunities, plans and activities relating to reducing such incidental taking from such specified activities, and evaluating its effects.


(2) The Director shall determine the adequacy and completeness of a request, and if found to be adequate, will invite information, suggestions, and comments on the preliminary finding of negligible impact and on the proposed specific regulations through notice in the Federal Register, newspapers of general circulation, and appropriate electronic media in the coastal areas that may be affected by such activity. All information and suggestions will be considered by the Fish and Wildlife Service in developing final findings and effective specific regulations.


(3) The Director shall evaluate each request to determine, based on the best available scientific evidence, whether the total taking will have a negligible impact on the species or stock and, where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. If the Director finds that mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that requirement, the Director may make a finding of negligible impact subject to such mitigating measures being successfully implemented. Any preliminary findings of “negligible impact” and “no unmitigable adverse impact” shall be proposed for public comment along with the proposed specific regulations.


(4) If the Director cannot make a finding that the total taking will have a negligible impact in the species or stock or will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Director shall publish in the Federal Register the negative finding along with the basis for denying the request.


(e) Specific regulations. (1) Specific regulations will be established for each allowed activity which set forth (i) permissible methods of taking, (ii) means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, and (iii) requirements for monitoring and reporting.


(2) Regulations will be established based on the best available scientific information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or part, after notice and opportunity for public review.


(f) Letters of Authorization. (1) A Letter of Authorization, which may be issued only to U.S. citizens, is required to conduct activities pursuant to any specific regulations established. Requests for Letters of Authorization shall be submitted to the Director, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240. The information to be submitted in a request may be obtained by writing the Director. Once specific regulations are effective, the Service will to the maximum extent possible, process subsequent applications for Letters of Authorization within 30 days after receipt of the application by the Service.


(2) Issuance of a Letter of Authorization will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations.


(3) Notice of issuance of all Letters of Authorization will be published in the Federal Register within 30 days of issuance.


(4) Letters of Authorization will specify the period of validity and any additional terms and conditions appropriate for the specific request.


(5) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appropriate, if, after notice and opportunity for public comment, the Director determines: (i) The regulations prescribed are not being substantially complied with, or (ii) the taking allowed is having, or may have, more than a negligible impact on the species or stock, or where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses.


(6) The requirement for notice and opportunity for public review in paragraph (f)(5) of this section shall not apply if the Director determines that an emergency exists which poses a significant risk to the well-being of the species or stocks of marine mammals concerned.


(7) A violation of any of the terms and conditions of a Letter of Authorization or of the specific regulations may subject the Holder and/or any individual who is operating under the authority of the Holder’s Letter of Authorization to penalties provided in the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407).


[48 FR 31225, July 7, 1983, as amended at 54 FR 40348, Sept. 29, 1989; 55 FR 28765, July 13, 1990; 56 FR 27463, June 14, 1991; 79 FR 43965, July 29, 2014]


Subpart D – Special Exceptions

§ 18.30 Polar bear sport-hunted trophy import permits.

(a) Application procedure. You, as the hunter or heir of the hunter’s estate, must submit an application for a permit to import a trophy of a polar bear taken in Canada to the Division of Management Authority at the address provided at 50 CFR 2.1(b). You must use an official application (Form 3-200) provided by the Service and must include as an attachment all of the following additional information:


(1) Certification that:


(i) You or the deceased hunter took the polar bear as a personal sport-hunted trophy;


(ii) You will use the trophy only for personal display purposes;


(iii) The polar bear was not a pregnant female, a female with dependent nursing cub(s) or a nursing cub (such as in a family group), or a bear in a den or constructing a den when you took it; and


(iv) For a polar bear taken after April 30, 1994, you made sure the gall bladder and its contents were destroyed;


(2) Name and address of the person in the United States receiving the polar bear trophy if other than yourself;


(3) For a polar bear received as an inheritance, documentation to show that you are the legal heir of the decedent who took the trophy;


(4) Proof that you or the decedent legally harvested the polar bear in Canada as shown by one of the following:


(i) A copy of the Northwest Territories (NWT) or Nunavut Territory hunting license and tag number;


(ii) A copy of the Canadian CITES export permit that identifies the polar bear by hunting license and tag number;


(iii) A copy of the NWT or Nunavut Territory export permit; or


(iv) A certification from the Department of Resources, Wildlife, and Economic Development, Northwest Territories, or the Department of Sustainable Development, Nunavut Territory, that you or the decedent legally harvested the polar bear, giving the tag number, location (settlement and population), and season you or the decedent took the bear;


(5) An itemized description of the polar bear parts you wish to import, including size and the sex of the polar bear;


(6) The month and year the polar bear was sport hunted;


(7) The location (nearest settlement or community) where the bear was sport hunted;


(8) For a female bear or a bear of unknown sex that was taken before January 1, 1986, documentary evidence that the bear was not pregnant at the time of take, including, but not limited to, documentation, such as a hunting license or travel itinerary, that shows the bear was not taken in October, November, or December or that shows that the location of the hunt did not include an area that supported maternity dens; and


(9) For a female bear, bear of unknown sex, or male bear that is less than 6 feet in length (from tip of nose to the base of the tail) that was taken prior to the 1996/97 NWT polar bear harvest season, available documentation to show that the bear was not nursing, including, but not limited to, documentation, such as a certification from the NWT, that the bear was not taken while part of a family group.


(b) Definitions. In addition to the definitions in this paragraph, the definitions in 50 CFR 10.12, 18.3, and 23.3 apply to this section.


(1) Sport-hunted trophy means a mount, rug or other display item composed of the hide, hair, skull, teeth, baculum, bones, and claws of the specimen which was taken by the applicant or decedent during a sport hunt for personal, noncommercial use and does not include any internal organ of the animal, including the gall bladder. Articles made from the specimen, such as finished or unfinished, worked, manufactured, or handicraft items for use as clothing, curio, ornamentation, jewelry, or as a utilitarian item are not considered trophy items.


(2) Management agreement means a written agreement between parties that share management responsibilities for a polar bear population which describes what portion of the harvestable quota will be allocated to each party and other measures which may be taken for the conservation of the population, such as harvest seasons, sex ratio of the harvest, and protection of females and cubs.


(c) Procedures for issuance of permits and modification, suspension or revocation of permits. We, the Service, shall suspend, modify or revoke permits issued under this section:


(1) In accordance with regulations contained in § 18.33; and


(2) If, in consultation with the appropriate authority in Canada, we determine that the sustainability of Canada’s polar bear populations is being adversely affected or that sport hunting may be having a detrimental effect on maintaining polar bear populations throughout their range.


(d) Issuance criteria. In deciding whether to issue an import permit for a sport-hunted trophy, we must determine in addition to the general criteria in part 13 of this subchapter whether:


(1) You previously imported the specimen into the United States without a permit;


(2) The specimen meets the definition of a sport-hunted trophy in paragraph (b) of this section;


(3) You legally harvested the polar bear in Canada;


(4) Canada has a monitored and enforced sport-hunting program consistent with the purposes of the 1973 International Agreement on the Conservation of Polar Bears;


(5) Canada has a sport-hunting program, based on scientifically sound quotas, ensuring the maintenance of the affected population at a sustainable level; and


(6) The export and subsequent import:


(i) Are consistent with the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and other international agreements and conventions; and


(ii) Are not likely to contribute to illegal trade in bear parts, including for bears taken after April 30, 1994, that the gall bladder and its contents were destroyed.


(e) Additional permit conditions. Your permit to import a sport-hunted trophy of a polar bear taken in Canada is subject to the permit conditions outlined in § 18.31(d) and the following additional permit conditions:


(1) You, the permittee, may not import internal organs of the polar bear, including the gall bladder;


(2) After import you may not alter or use the trophy in a manner inconsistent with the definition of a sport-hunted polar bear trophy as given in § 18.30(b);


(3) You may not import a sport-hunted trophy if the polar bear at the time you or the decedent took it was:


(i) A nursing bear or a female with nursing young (i.e., part of a family group);


(ii) A pregnant female; or


(iii) A bear moving into a den or in a den;


(4) You must present to Service personnel at the time of import a valid CITES document from the country of export or re-export;


(5) You must comply with the following import procedures:


(i) Import the sport-hunted trophy through a designated port for wildlife imports (see § 14.12 of this subchapter) during regular business hours, except for full mount trophies that have been granted an exception to designated port permit requirements under § 14.32 of this subchapter;


(ii) Not send the trophy through the international mail; and


(iii) Notify Service personnel at the port at least 48 hours before the import (see § 14.54 of this subchapter) and make arrangements for Service personnel to affix a tag in accordance with paragraph (e)(7) of this section prior to being cleared (see § 14.52 of this subchapter);


(6) You must import all parts of a single trophy at the same time;


(7) The following tagging/marking procedures apply:


(i) Service personnel must affix a permanently locking tag that contains a unique serial number and the common name “polar bear” to the hide which must remain fixed indefinitely to the hide as proof of legal import; and


(ii) Service personnel must permanently mark upon import the parts of the trophy other than the hide, such as the skull and bones, with the hide tag number; and


(8) If the tag comes off the hide, you must within 30 days:


(i) Contact the nearest Service office at a designated port or a Law Enforcement office as given in § 10.22 of this subchapter to schedule a time to present the trophy for retagging;


(ii) Provide as proof that the trophy had been tagged and legally imported a copy of the:


(A) Canceled CITES export permit or re-export certificate;


(B) Canceled U.S. import permit issued under this section; or


(C) Cleared wildlife declaration form (3-177); and


(iii) Present either the broken tag, or if the tag was lost, a signed written explanation of how and when the tag was lost.


(f) Duration of permits. The permit will be valid for no more than one year from the date of issuance.


(g) Fees. (1) You must pay the standard permit processing fee as given in § 13.11(4) when filing an application.


(2) You must pay the issuance fee of $1,000 when we notify you the application is approved. We cannot issue an import permit until you pay this fee. We will use the issuance fee to develop and implement cooperative research and management programs for the conservation of polar bears in Alaska and Russia under section 113(d) of the Marine Mammal Protection Act.


(h) Scientific review. (1) We will undertake a scientific review of the impact of permits issued under this section on the polar bear populations in Canada within 2 years of March 20, 1997.


(i) The review will provide an opportunity for public comment and include a response to the public comment in the final report; and


(ii) We will not issue permits under this section if we determine, based upon scientific review, that the issuance of permits under this section is having a significant adverse impact on the polar bear populations in Canada; and


(2) After the initial review, we may review whether the issuance of permits under this section is having a significant adverse impact on the polar bear populations in Canada annually in light of the best scientific information available. The review must be completed no later than January 31 in any year a review is undertaken.


(i) Findings. Polar bear sport-hunted trophies may only be imported after issuance of an import permit, and in accordance with the following findings and conditions:


(1) We have determined that the Northwest Territories and Nunavut Territory, Canada, have a monitored and enforced sport-hunting program that meets issuance criteria of paragraphs (d) (4) and (5) of this section for the following populations: Southern Beaufort Sea, Northern Beaufort Sea, Viscount Melville Sound (subject to the lifting of the moratorium in this population), Western Hudson Bay, M’Clintock Channel (only for polar bears lawfully taken on or before May 31, 2000), Lancaster Sound, and Norwegian Bay, and that:


(i) For the Southern Beaufort Sea population, no bears are taken west of the equidistant line of the Beaufort Sea;


(ii) For all populations, females with cubs, cubs, or polar bears moving into denning areas or already in dens are protected from taking by hunting activities; and


(iii) For all populations, management agreements among all management entities with scientifically sound quotas are in place; and


(2) Any sport-hunted trophy taken in the Northwest Territories, Canada, between December 21, 1972, and April 30, 1994, may be issued an import permit when:


(i) From an approved population listed in paragraph (i)(1); and


(ii) The issuance criteria of paragraph (d) (1), (2), (3), and (6) of this section are met.


[62 FR 7329, Feb. 18, 1997, as amended at 64 FR 1539, Jan. 11, 1999; 66 FR 1907, Jan. 10, 2001; 66 FR 50851, Oct. 5, 2001; 79 FR 43965, July 29, 2014]


§ 18.31 Scientific research permits and public display permits.

The Director may, upon receipt of an application and in accordance with the issuance criteria of this section, issue a permit authorizing the taking and importation of marine mammals for scientific research purposes or for public display.


(a) Application procedure. Applications for permits to take and import marine mammals for scientific research purposes or for public display shall be submitted to the Director. Each such application must contain the general information and certification required by § 13.12(a) of this subchapter plus the following additional information:


(1) A statement of the purpose, date, location and manner of the taking or importation;


(2) A description of the marine mammal or the marine mammal products to be taken or imported, including the species or subspecies involved; the population stock, when known, the number of specimens or products (or the weight thereof, where appropriate); and the anticipated age, size, sex, and condition (i.e., whether pregnant or nursing) of the animals involved;


(3) If the marine mammal is to be taken and transported alive, a complete description of the manner of transportation, care and maintenance, including the type, size, and construction of the container or artificial environment; arrangements for feeding and sanitation; a statement of the applicant’s qualifications and previous experience in caring for and handling captive marine mammals and a like statement as to the qualifications of any common carrier or agent to be employed to transport the animal; and a written certification of a licensed veterinarian knowledgeable in the field of marine mammals that he has personally reviewed the arrangements for transporting and maintaining the animals and that in his opinion they are adequate to provide for the well-being of the animal;


(4) If the application is for a scientific research permit, a detailed description of the scientific research project or program in which the marine mammal or marine mammal product is to be used including a copy of the research proposal relating to such program or project and the names and addresses of the sponsor or cooperating institution and the scientists involved;


(5) If the application is for a scientific research permit, and if the marine mammal proposed to be taken or imported is listed as an endangered or threatened species or has been designated by the Secretary as depleted, a detailed justification of the need for such a marine mammal, including a discussion of possible alternatives, whether or not under the control of the applicant; and


(6) If the application is for a public display permit, a detailed description of the proposed use to which the marine mammal or marine mammal product is to be put, including the manner, location, and times of display, whether such display is for profit, an estimate of the numbers and types of persons who it is anticipated will benefit for such display, and whether and to what extent the display is connected with educational or scientific programs. There shall also be included a complete description of the enterprise seeking the display permit and its educational, and scientific qualifications, if any.


(b) Review by Marine Mammal Commission. Upon receipt of an application the Director shall forward the application to the Marine Mammal Commission together with a request for the recommendations of the Commission and the Committee of Scientific Advisors on Marine Mammals. In order to comply with the time limits provided in these regulations, the Director shall request that such recommendation be submitted within 30 days of receipt of the application by the Commission. If the Commission or the Committee, as the case may be, does not respond within 30 days from the receipt of such application by the Commission, the Director shall advise the Commission in writing that failure to respond within 45 days from original receipt of the application (or such longer time as the Director may establish) shall be considered as a recommendation from the Commission and the Committee that the permit be issued. The Director may also consult with any other person, institution or agency concerning the application.


(c) Issuance criteria. Permits applied for under this section shall be issued, suspended, modified and revoked pursuant to regulations contained in § 18.33. In determining whether to issue a scientific research permit, the Director shall consider whether the proposed taking or importation will be consistent with the policies and purposes of the Act; and whether the granting of the permit is required to further a bona fide and necessary or desirable scientific purpose, taking into account the benefits anticipated to be derived from the scientific research contemplated and the effect of the purposed taking or importation on the population stock and the marine ecosystem. In determining whether to issue a public display permit, the Director shall consider whether the proposed taking or importation will be consistent with the policies and purposes of the Act; whether a substantial public benefit will be gained from the display contemplated, taking into account the manner of the display and the anticipated audience on the one hand, and the effect of the proposed taking or importation on the population stocks of the marine mammal in question and the marine ecosystem on the other; and the applicant’s qualifications for the proper care and maintenance of the marine mammal or the marine mammal product, and the adequacy of his facilities.


(d) Additional permit conditions. In addition to the general conditions set forth in part 13 of this subchapter B, permits issued under this section shall be subject to the following conditions:


(1) Any permit issued under these regulations must be in the possession of the person to whom it is issued (or an agent of such person) during:


(i) The time of the authorized taking or importation;


(ii) The period of any transit of such person or agent which is incidental to such taking or importation; and


(iii) Any other time while any marine mammal taken or imported under such permit is in the possession of such person or agent.


(2) A duplicate copy of the issued permit must be physically attached to the container, package, enclosure, or other means of containment, in which the marine mammal is placed for purposes of storage, transit, supervision, or care.


(e) Tenure of permits. The tenure of permits for scientific research or public display shall be designated on the face of the permit.


§ 18.32 Waiver of the moratorium.

See subpart F (Waiver of the moratorium; State laws and regulations) and subpart G (Notice and Hearing on section 103 Regulations) for procedures regarding waivers of the moratorium in those circumstances where a state provides an acceptable management program for a species or population stock within its jurisdiction.


[40 FR 59442, Dec. 24, 1975]


§ 18.33 Procedures for issuance of permits and modification, suspension, or revocation thereof.

(a) Whenever application for a permit is received by the director which the director deems sufficient, he shall, as soon as practicable, publish a notice thereof in the Federal Register. Such notice shall set forth a summary of the information contained in such application. Any interested party may, within 30 days after the date of publication of such notice, submit to the director his written data or views with respect to the taking or importation proposed in such application and may request a hearing in connection with the action to be taken thereon.


(b) If the request for a hearing is made within the 30-day period referred to in paragraph (a) of this section, or if the director determines that a hearing would otherwise be advisable, the director may, within 60 days after the date of publication of the notice referred to in paragraph (a) of this section, afford to such requesting party or parties an opportunity for a hearing. Such hearing shall also be open to participation by any interested members of the public. Notice of the date, time, and place of such hearing shall be published in the Federal Register not less than 15 days in advance of such hearing. Any interested person may appear in person or through representatives at the hearing and may submit any relevant material, data, views, comments, arguments, or exhibits. A summary record of the hearing shall be kept.


(c) As soon as practicable but not later than 30 days after the close of the hearing (or if no hearing is held, as soon as practicable after the end of the 30 days succeeding publication of the notice referred to in paragraph (a) of this section the director shall issue or deny issuance of the permit. Notice of the decision of the director shall be published in the Federal Register within 10 days after the date of such issuance or denial. Such notice shall include the date of the issuance or denial and indicate where copies of the permit, if issued, may be obtained.


(d) Any permit shall be subject to modification, suspension, or revocation by the director in whole or in part in accordance with these regulations and the terms of such permits. The permittee shall be given written notice by registered mail, return receipt requested, of any proposed modification, suspension, or revocation. Such notice shall specify:


(1) The action proposed to be taken along with a summary of the reasons therefor;


(2) In accordance with 5 U.S.C. 558, the steps which the permittee may take to demonstrate or achieve compliance with all lawful requirements; and


(3) That the permittee is entitled to a hearing thereon if a written request for such a hearing is received by the Director within 10 days after receipt of the aforesaid notice or such other later date as may be specified in the notice to the permittee. The time and place of the hearing, if requested by the permittee, shall be determined by the director and a written notice thereof given to the permittee by registered mail, return receipt requested, not less than 15 days prior to the date of hearing specified. The director may, in his discretion, allow participation at the hearing by interested members of the public. The permittee and other parties participating may submit all relevant material, data, views, comments, arguments, and exhibits at the hearing. A summary record shall be kept of any such hearing.


(e) The Director shall make a decision regarding the proposed modification, suspension, or revocation, as soon as practicable after the close of the hearing, or if no hearing is held, as soon as practicable after the close of the 10 day period during which a hearing could have been requested. Notice of the modification, suspension, or revocation shall be published in the Federal Register within 10 days from the date of the Director’s decision. In no event shall the proposed action take effect until notice of the Director’s decision is published in the Federal Register.


§ 18.34 Guidelines for use in safely deterring polar bears.

(a) These guidelines are intended for use in safely deterring polar bears in the wild. They provide acceptable types of deterrence actions that any person, or their employee, or their agent, can use to deter a polar bear from damaging private property; or that any person can use to deter a polar bear from endangering personal safety; or that a government employee can use to deter a polar bear from damaging public property, and not cause the serious injury or death of a polar bear. Anyone acting in such a manner and conducting activities that comply with the guidelines in this subpart does not need authorization under the MMPA to conduct such deterrence. Furthermore, actions consistent with these guidelines do not violate the take prohibitions of the MMPA or this part. A Federal, State or local government official or employee may take a polar bear in the course of his duties as an official or employee, as long as such taking is accomplished in accordance with § 18.22 of this part.


(b) There are two types of deterrence measures that a person, or their employee, or their agent could follow to nonlethally deter a polar bear. Each type of measure includes a suite of appropriate actions that the public may use.


(1) Passive deterrence measures. Passive deterrence measures are those that prevent polar bears from gaining access to property or people. These measures provide for human safety and do not increase the risk of serious injury or death of a polar bear. They include:


(i) Rigid fencing. Rigid fencing and other fixed barriers such as gates and fence skirting can be used around buildings or areas to limit bears from accessing community or industrial sites and buildings. Fencing areas 5 acres (∼2 ha) and smaller can be used to limit human-bear interactions. Industry standard chain-link fencing material can be used. Chain-link fencing can be placed around buildings on pilings as fence skirting to limit access of bears underneath the buildings.


(ii) Bear exclusion cages. Bear exclusion cages provide a protective shelter for people in areas frequented by bears. Cages erected at building entry and exit points exclude polar bears from the immediate area and allow safe entry and exit for persons gaining access to, or leaving, a building should a polar bear be in the vicinity. Additionally, they provide an opportunity for people exiting a building to conduct a visual scan upon exit. Such a scan is especially important in areas where buildings are constructed above ground level due to permafrost because bears may be resting underneath. These cages can be used at homes or industrial facilities to deter bears as well. Cages can be used in remote areas where bear use is not known, and along bear travel corridors, e.g., within 0.5 mile from coastline, to deter bears from facilities. Cages must be no smaller than 4 ft (width) by 4 ft (length) by 8 ft (height). Bars must be no smaller than 1 inch wide. Distance between bars must be no more than 4 inches clear on stairways and landings or when otherwise attached to a habitable structure; they may be no more than 5 inches clear for use in cages not attached to any habitable structure. A 4-inch distance between the bars would be sufficient to prevent a bear from reaching through, while providing visible space between bars. The ceiling of the cage must be enclosed.


(iii) Bear-resistant garbage containers. Bear-resistant garbage containers prevent bears from accessing garbage as a food source and limit polar bears from becoming food-conditioned or habituated to people and facilities. The absence of habituation further reduces the potential for bear-human interactions. Bear-resistant garbage cans and garbage bins are manufactured by various companies and in various sizes. Commercially designed residential bear-resistant containers (32-130 gallons) can be used. Two- to 6-cubic yard containers can be specifically designed by commercial vendors as bear-proof containers or have industry-standard lid locks to prohibit bear entry, depending on the need and location. For remote seasonal camps, garbage can be temporarily stored in steel drums secured with locking rings and a gasket, and removed from the site when transportation is available. Larger garbage containers, such as dumpsters or “roll-offs” (20 to 40 cubic yards), can limit bear-human interactions when the containers have bear-proof lids. Lids must be constructed of heavy steel tubing or similarly constructed with heavy expanded metal.


(2) Preventive deterrence measures. Preventive deterrence measures are those that can dissuade a polar bear from initiating an interaction with property or people. These measures provide for safe human use and do not increase the risk of serious injury or death of a polar bear. These are:


(i) Acoustic devices. Acoustic deterrent devices may be used to create an auditory disturbance causing polar bears to move away from the affected area. The reasonable use of loud noises, e.g., vehicle engines, automobile sirens or horns, and air-horns, where such auditory stimuli could startle a bear and disrupt its approach to property or people, is authorized. This authorization is limited to deterrent devices with a sound strength of no greater than 140 dB SPL to be deployed for no more than a 30-second continuous time interval. The use of commercially available air horns or other audible products used as perimeter alarms, which create sounds that fall below this upper limit, is acceptable.


(ii) Vehicle or boat deterrence. Patrolling the periphery of a compound or encampment using a vehicle, such as a truck or all-terrain vehicle (e.g., a snowmobile or a four wheeler), and deterring, but not chasing, polar bears with engine noise, or by blocking their approach without making a physical contact with the animal, is an acceptable preventive deterrence. Similarly patrolling an area in a small boat using similar methods is acceptable.


(c) The deterrence guidelines are passive or preventive in nature. Any action to deter polar bears that goes beyond these specific measures could result in a taking and, unless otherwise exempted under the MMPA, would require separate authorization. The Service acknowledges that there will be numerous new techniques developed, or new applications of existing techniques, for deterring bears. The Service will work to establish a system for evaluating new bear deterrence applications and techniques and will update this set of guidelines with examples of future approved methods. Deterrence actions (other than the measures described in these guidelines) that do not result in serious injury or death to a polar bear remain permissible for persons identified in section 101(a)(4)(A) of the MMPA. Prior to conducting activities beyond those specifically described in these guidelines, persons should contact the Service’s Alaska Regional Office’s Marine Mammal Program for further guidance (for the location of the Alaska Regional Office see 50 CFR 2.2(g)).


[75 FR 61637, Oct. 6, 2010]


Subpart E – Depleted Species or Stocks [Reserved]

Subpart F – Transfer of Management Authority to States


Note:

Regulations governing the transfer of management authority to States pursuant to section 109 of the Marine Mammal Protection Act for marine mammal species under the jurisdiction of the Secretary of the Interior are found at part 403 of this title.


[48 FR 22456, May 18, 1983]


Subpart G – Notice and Hearing on Section 103 Regulations


Source:41 FR 5396, Feb. 6, 1976, unless otherwise noted.

§ 18.70 Basis and purpose.

(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these regulations authorize the Director, U.S. Fish and Wildlife Service, to: (1) Impose regulations governing the taking of marine mammals incidental to commercial fishing operations; (2) waive the moratorium and adopt regulations with respect to the taking and importing of animals from each species of marine mammals under his jurisdiction; and (3) prescribe regulations governing the taking of depleted marine mammals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sections, the act refers the Director to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Director to waive the moratorium pursuant to section 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)).


(b) [Reserved]


§ 18.71 Definitions.

Definitions shall be the same as in subpart A of this part except as follows:


(a) Party means for the purposes of this subpart:


(1) The Director or his representative; or


(2) A person who has notified the Director by specified dates of his or her intent to participate in the hearing pursuant to §§ 18.75 and 18.84(b).


(b) Presiding officer means, for the purposes of this subpart, an administrative law judge of the Office of Hearings and Appeals appointed in accordance with 5 U.S.C. 3105.


(c) Witness means, for the purposes of this subpart, any person who provides direct testimony on the proposed regulations and waiver. A person may be both a party and a witness.


§ 18.72 Scope of regulations.

The procedural regulations in this subpart govern the practice and procedure in hearings held under section 103(d) of the Act. These hearings will be governed by the provisions of sections 556 and 557 of the Administrative Procedure Act (5 U.S.C. 556 and 557). The regulations shall be construed to secure the just, speedy, and inexpensive determination of all issues raised with respect to any waiver and/or regulation proposed pursuant to section 103(d) of the act in a manner which gives full protection to the rights of all persons affected thereby.


§ 18.73 Burden of proof.

The proponents of the proposed regulations and waiver must demonstrate that any taking or importation of any marine mammal under such proposed regulations and waiver would be consistent with the act.


§ 18.74 Notice of hearing.

(a) A notice of hearing on any proposed regulations shall be published in the Federal Register, together with the Director’s proposed determination to waive the moratorium pursuant to section 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)), where applicable.


(b) The notice shall state:


(1) The nature of the hearing;


(2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hearing;


(3) The legal authority under which the hearing is to be held;


(4) The proposed regulations and waiver, where applicable, and a summary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d));


(5) Issues of fact which may be involved in the hearing;


(6) If an Environmental Impact Statement is required, the date of publication of the Statement and the times and place(s) where the Statement and comments thereon may be viewed and copied;


(7) Any written advice received from the Marine Mammal Commission;


(8) The times and place(s) where records and submitted direct testimony will be kept for public inspection, along with appropriate references to any other documents;


(9) The final date for filing with the Director a notice of intent to participate in the hearing pursuant to § 18.75;


(10) The final date for submission of direct testimony on the proposed regulations and waiver, if applicable, and the number of copies required;


(11) The docket number assigned to the case which shall be used in all subsequent proceedings; and


(12) The place and date of the prehearing conference.


§ 18.75 Notification by interested persons.

Any person desiring to participate as a party shall notify the Director, by certified mail, on or before the date specified in the notice of hearing.


§ 18.76 Presiding officer.

(a) Upon publication of the notice of hearing pursuant to § 18.74, the Office of Hearings and Appeals shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding.


(b) The presiding officer, in any proceeding under this subpart, shall have power to:


(1) Change the time and place of the hearing and adjourn the hearing;


(2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing conference to determine the issues for the hearing agenda, and cause to be published in the Federal Register a final hearing agenda;


(3) Rule upon motions, requests and admissibility of direct testimony;


(4) Administer oaths and affirmations, question witnesses and direct witnesses to testify;


(5) Modify or waive any rule (after notice) when determining no party will be prejudiced;


(6) Receive written comments and hear oral arguments;


(7) Render a recommended decision; and


(8) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding.


(c) In case of the absence of the original presiding officer or his inability to act, the powers and duties to be performed by the original presiding officer under this part in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer by the Office of Hearings and Appeals unless otherwise ordered by the Director.


(d) The presiding officer shall withdraw from the proceeding upon his own motion or upon the filing of a motion by a party under § 18.76(e) if he deems himself disqualified under recognized canons of judicial ethics.


(e) A presiding officer may be requested to withdraw at any time prior to the recommended decision. If there is filed by a party in good faith a timely and sufficient affidavit alleging the presiding officer’s personal bias, malice, conflict of interest or other basis which might result in prejudice to a party, the hearing shall recess. The Director of the Office of Hearings and Appeals shall immediately determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances.


§ 18.77 Direct testimony submitted as written documents.

(a) Unless otherwise specified, all direct testimony, including accompanying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§ 18.74), the prehearing order (§ 18.82), or within 15 days after the conclusion of the prehearing conference (§ 18.84) as the case may be. All direct testimony, referred to in the affidavit and made a part thereof, must be attached to the affidavit. Direct testimony submitted with exhibits must state the issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the Federal Register.


(b) The direct testimony submitted shall contain:


(1) A concise statement of the witness’ interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state his relationship to the party; and


(2) Facts that are relevant and material.


(c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing.


(d) Ten copies of all direct testimony must be submitted unless the notice of the hearing otherwise specifies.


(e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number.


(f) Contemporaneous with the publication of the notice of hearing, the Director’s direct testimony in support of the proposed regulations and waiver, where applicable, shall be available for public inspection as specified in the notice of hearing. The Director may submit additional direct testimony during the time periods allowed for submission of such testimony by witnesses.


§ 18.78 Mailing address.

Unless otherwise specified in the notice of hearing, all direct testimony shall be addressed to the Presiding Officer, c/o Director, U.S. Fish and Wildlife Service, Washington, DC 20240. All affidavits and exhibits shall be clearly marked with the docket number of the proceedings.


§ 18.79 Inspection and copying of documents.

Any document in a file pertaining to any hearing authorized by this subpart or any document forming part of the record of such a hearing may be inspected and/or copied in the Office of the Director, U.S. Fish and Wildlife Service, Washington, DC 20240, unless the file is in the care and custody of the presiding officer, in which case he shall notify the parties as to where and when the record may be inspected.


§ 18.80 Ex parte communications.

(a) After notice of a hearing is published in the Federal Register, all communications, whether oral or written, involving any substantive or procedural issue and directed either to the presiding officer or to the Director, Deputy Director or Marine Mammal Coordinator, U.S. Fish and Wildlife Service, without reference to these rules of procedure, shall be deemed ex parte communications and are not to be considered part of the record for decision.


(b) A record of oral conversations shall be made by the above persons who are contacted. All communications shall be available for public viewing at times and place(s) specified in the notice of hearing.


(c) The presiding officer shall not communicate with any party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate.


§ 18.81 Prehearing conference.

(a) After an examination of all the direct testimony submitted pursuant to § 18.77, the presiding officer shall make a preliminary determination of issues of fact which may be addressed at the hearing.


(b) The presiding officer’s preliminary determination shall be made available at the place or places provided in the notice of the hearing (§ 18.74(b)(8)) at least five days before the prehearing conference is held.


(c) The purpose of the prehearing conference shall be to enable the presiding officer to determine, on the basis of the direct testimony submitted and prehearing discussions:


(1) Whether the presiding officer’s preliminary determination of issues of fact for the hearing has omitted any significant issues;


(2) What facts are not in dispute;


(3) Which witnesses may appear at the hearing; and


(4) The nature of the interest of each party and which parties’ interests are adverse.


(d) Only parties may participate in the prehearing conference, and a party may appear in person or be represented by counsel.


§ 18.82 Prehearing order.

(a) After the prehearing conference, the presiding officer shall prepare a prehearing order which shall be published in the Federal Register within ten days after the conclusion of the conference. A copy of the prehearing order shall be mailed to all Parties.


(b) The prehearing order shall list: (1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the direct testimony submitted which bears on the issues; and (2) a final date for submission of direct testimony on issues of fact not included in the notice of hearing if such issues are presented. The prehearing order may also specify a final date for submission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing.


(c) The presiding officer shall publish with the prehearing order a list of witnesses who may appear at the hearing, a list of parties, the nature of the interest of each party, and which parties interests are adverse on the issues presented.


(d) All parties shall be bound by the prehearing order.


§ 18.83 Determination to cancel the hearing.

(a) If the presiding officer determines that no issues of material fact are presented by the direct testimony submitted prior to the date of the hearing, he may publish in the Federal Register such determination and that on issues of material fact a hearing shall not be held. The presiding officer may provide an opportunity for argument on any issues of law presented by the direct testimony.


(b) Promptly after oral argument, if any, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the direct testimony and any oral argument presented. He shall transmit to the Director his recommended decision, the record and a certificate stating that the record contains all the written direct testimony. The Director shall then make a final decision in accordance with these regulations (§ 18.91).


§ 18.84 Rebuttal testimony and new issues of fact in prehearing order.

(a) Direct testimony to rebut testimony offered during the time period specified in the notice of hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the prehearing conference unless the presiding officer otherwise specifies in the prehearing order.


(b) If the prehearing order presents issues not included in the notice of the hearing published pursuant to § 18.74:


(1) Any person interested in participating at the hearing on such issues presented shall notify the Director by certified mail of an intent to participate not later than ten days after publication of the prehearing order. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless he previously notified the Director pursuant to § 18.75; and


(2) Additional written direct testimony concerning such issues may be submitted within the time provided in the prehearing order. Such direct testimony will comply with the requirements of § 18.77.


§ 18.85 Waiver of right to participate.

Any person who fails to notify the Director of his intent to participate pursuant to § 18.75 or § 18.84 shall be deemed to have waived his right to participate as a party.


§ 18.86 Conduct of the hearing.

(a) The hearing shall be held at the time and place fixed in the notice of hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the change in the Federal Register and shall expeditiously notify all parties by telephone or by mail. If the change in time or place of hearing is made less than five days before the date previously fixed for the hearing, the presiding officer shall also announce, or cause to be announced, the change at the time and place previously fixed for the hearing.


(b) The presiding officer shall, at the commencement of the hearing, introduce into the record the notice of hearing as published in the Federal Register, all subsequent notices published in the Federal Register, the Environmental Impact Statement if it is required and the comments thereon and agency responses to the comments, and a list of all parties. Direct testimony shall then be received with respect to the matters specified in the prehearing order in such order as the presiding officer shall announce. With respect to direct testimony submitted as rebuttal testimony or in response to new issues presented by the prehearing conference, the presiding officer shall determine the relevancy of such testimony.


(c) The hearing shall be publicly conducted and reported verbatim by an official reporter.


(d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding officer during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling of the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Director’s final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings.


(e) All motions and requests shall be addressed to, and ruled on by, the presiding officer if made prior to his certification of the transcript, or by the Director if made thereafter.


§ 18.87 Direct testimony.

(a) Only direct testimony submitted as provided in these regulations and introduced at the hearing by a witness shall be considered part of the record. Such direct testimony, when written, shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof.


(b) The witness introducing direct testimony shall:


(1) State his name, address and occupation;


(2) State qualifications for introducing the direct testimony. If an expert, the witness shall briefly state the scientific or technical training which qualifies him as an expert;


(3) Identify the direct testimony previously submitted in accordance with these regulations; and


(4) Submit to appropriate cross- and direct-examination. Cross-examination shall be by a party whose interests are adverse on the issue presented to the witness if the witness is a party, or to the interests of the party who presented the witness.


(c) A party shall be deemed to have waived the right to introduce direct-testimony if such party fails to present a witness to introduce the direct-testimony.


(d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States. Parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.


§ 18.88 Cross-examination.

(a) The presiding officer may:


(1) Require the cross-examiner to outline the intended scope of the examination; and


(2) Exclude cross-examination questions that are immaterial, irrelevant or unduly repetitious.


(b) Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or counsel shall state his name, address and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be familiar with the direct testimony.


(c) Any party or party’s counsel who fails to appear at the hearing to cross-examine an “adverse” witness shall be deemed to have waived the right to cross-examine that witness.


(d) Scientific, technical or commercial publications may only be utilized for the limited purposes of impeaching witnesses under cross-examination unless previously submitted and introduced in accordance with these regulations.


§ 18.89 Oral and written arguments.

(a) The presiding officer may, in his discretion, provide for oral argument by parties at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding.


(b) The presiding officer shall announce at the hearing a reasonable period of time within which any party may file with the presiding officer proposed findings and conclusions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by such party to a ruling of the presiding officer, he shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state his arguments thereon as a part of the brief.


(c) Oral or written arguments shall be limited to issues arising from direct testimony on the record.


§ 18.90 Recommended decision, certification of the transcript and submission of comments on the recommended decision.

(a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Director. The recommended decision shall include:


(1) A statement containing a description of the history of the proceedings;


(2) Findings on the issues of fact with the reasons therefor; and


(3) Rulings on issues of law.


(b) The presiding officer shall also transmit to the Director the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that to the best of his knowledge and belief the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified.


(c) Upon receipt of the recommended decision, the Director shall send a copy thereof to each party by certified mail and shall publish in the Federal Register a notice of the receipt of the recommended decision by the Director. The notice shall include:


(1) A summary of the recommended decision;


(2) A statement that any interested person may file written comments on the recommended decision with the Director by a specified date;


(3) The time(s) and place(s) where the record of the hearing transmitted to the Director pursuant to paragraph (b) of this section may be inspected by interested persons; and


(4) The time(s) and place(s) where the recommended decision may be inspected and/or copied by interested persons.


(d) Within thirty days after the notice of receipt of the recommended decision has been published in the Federal Register, any interested person may file with the Director any written comments on the recommended decision. All comments, including recommendations from or consultation with the Marine Mammal Commission, must be submitted during the thirty-day period to the Director at the above address.


§ 18.91 Director’s decision.

(a) Upon receipt of the recommended decision and transcript and after the thirty-day period for receiving written comments on the recommended decision has passed, the Director shall make a final decision on the proposed regulations and waiver, where applicable. The Director’s decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the presiding officer. The Director may also remand the hearing record to the presiding officer for a fuller development of the record.


(b) The Director’s decision shall include:


(1) A statement containing a description of the history of the proceeding;


(2) Findings on the issues of fact with the reasons therefor;


(3) Rulings on issues of law; and


(4) Any other relevant information which the Director deems appropriate.


(c) The Director’s decision shall be published in the Federal Register. If the waiver is approved, the final adopted regulations shall be promulgated with the decision, or as soon thereafter as practicable.


Subpart H – Waiver of Moratorium on Taking and Importation of Individual Marine Mammal Species


Source:41 FR 14373, Apr. 5, 1976, unless otherwise noted.

§ 18.92 Purpose of regulations.

The regulations contained in this subpart fulfill the requirements of section 103 of the Act for regulations to govern the taking and importation of each species of marine mammal for which the moratorium imposed by section 101 has been waived.


§ 18.93 Scope of regulations.

(a) The provisions in this subpart apply only after (1) the Director has made a decision to waive a moratorium pursuant to section 101(a)(3)(A) of the Act, (2) the opportunity for a hearing required by section 103(d) of the Act has been provided, and (3) the Director has made a determination, in the case of State laws and regulations, to approve such State laws and regulations pursuant to section 109(a)(2) of the Act and subpart F of this part.


(b) The provisions of this subpart, unless specifically stated, apply to all taking and/or importation of each species of marine mammal for which the moratorium has been waived other than takings for scientific research or public display, which are governed by § 18.31 of this part, or takings incidental to commercial fishing operations which are governed by § 18.24.


§ 18.94 Pacific walrus (Alaska).

(a) Pursuant to sections 101(a)(3)(A) 103, and 109 of the Marine Mammal Protection Act of 1972, the moratorium on the hunting and killing of Pacific walrus (Odobenus rosmarus) in waters or on lands subject to the jurisdiction of the State of Alaska, the United States, or on the high seas by any person, vessel, or conveyance subject to the jurisdiction of the State of Alaska or the United States, is waived, provided that beginning August 2, 1979 this waiver shall not be effective, and no taking or importation under the waiver shall be allowed, until this section is amended to establish regulations to effectively control taking and otherwise implement the waiver.


(b) [Reserved]


[41 FR 14373, Apr. 5, 1976, as amended at 44 FR 45566, Aug. 2, 1979]


Subpart I [Reserved]

Subpart J – Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Exploration, Development, and Production Activities in the Beaufort Sea and Adjacent Northern Coast of Alaska


Source:86 FR 43070, Aug. 5, 2021, unless otherwise noted.


Effective Date Note:At 86 FR 43070, Aug. 5, 2021, Part 18, subpart J was revised, effective Aug. 5, 2021 through Aug. 5, 2026.

§ 18.119 Specified activities covered by this subpart.

Regulations in this subpart apply to the nonlethal incidental, but not intentional, take of small numbers of polar bear and Pacific walrus by certain U.S. citizens while engaged in oil and gas exploration, development, and production activities in the Beaufort Sea and adjacent northern coast of Alaska.


§ 18.120 Specified geographic region where this subpart applies.

This subpart applies to the specified geographic region that encompasses all Beaufort Sea waters east of a north-south line through Point Barrow, Alaska (N71.39139, W156.475, BGN 1944), and 80.5 km (50 mi) north of Point Barrow, including Alaska State waters and Outer Continental Shelf waters, and east of that line to the Canadian border.


(a) The offshore boundary of the Beaufort Sea incidental take regulations (ITR) region extends 80.5 km (50 mi) offshore. The onshore region is the same north/south line at Utqiagvik, 40.2 km (25 mi) inland and east to the Canning River.


(b) The Arctic National Wildlife Refuge and the associated offshore waters within the refuge boundaries are not included in the Beaufort Sea ITR region. Figure 1 shows the area where this subpart applies.



§ 18.121 Dates this subpart is in effect.

Regulations in this subpart are effective from August 5, 2021, through August 5, 2026, for year-round oil and gas exploration, development, and production.


§ 18.122 Procedure to obtain a Letter of Authorization (LOA).

(a) An applicant must be a U.S. citizen as defined in § 18.27(c) and among:


(1) Those entities specified in the request for this rule as set forth in paragraph (b) of this section;


(2) Any of their corporate affiliates; or


(3) Any of their respective contractors, subcontractors, partners, owners, co-lessees, designees, or successors-in-interest.


(b) The entities specified in the request are the Alaska Oil and Gas Association, which includes Alyeska Pipeline Service Company, BlueCrest Energy, Inc., Chevron Corporation, ConocoPhillips Alaska, Inc., Eni U.S. Operating Co. Inc., ExxonMobil Alaska Production Inc., Furie Operating Alaska, LLC, Glacier Oil and Gas Corporation, Hilcorp Alaska, LLC, Marathon Petroleum, Petro Star Inc., Repsol, and Shell Exploration and Production Company, Alaska Gasline Development Corporation, Arctic Slope Regional Corporation Energy Services, Oil Search (Alaska), LLC, and Qilak LNG, Inc.


(c) If an applicant proposes to conduct oil and gas industry exploration, development, and production in the Beaufort Sea ITR region described in § 18.120 that may cause the taking of Pacific walruses and/or polar bears and wants nonlethal incidental take authorization under the regulations in this subpart J, the applicant must request an LOA. The applicant must submit the request for authorization to the Service’s Alaska Region Marine Mammals Management Office (see § 2.2 for address) at least 90 days prior to the start of the activity.


(d) The request for an LOA must comply with the requirements set forth in §§ 18.126 through 18.128 and must include the following information:


(1) A plan of operations that describes in detail the activity (e.g., type of project, methods, and types and numbers of equipment and personnel, etc.), the dates and duration of the activity, and the specific locations of and areas affected by the activity.


(2) A site-specific marine mammal monitoring and mitigation plan to monitor and mitigate the effects of the activity on Pacific walruses and polar bears.


(3) A site-specific Pacific walrus and polar bear safety, awareness, and interaction plan. The plan for each activity and location will detail the policies and procedures that will provide for the safety and awareness of personnel, avoid interactions with Pacific walruses and polar bears, and minimize impacts to these animals.


(4) A plan of cooperation to mitigate potential conflicts between the activity and subsistence hunting, where relevant. Applicants must provide documentation of communication with potentially affected subsistence communities along the Beaufort Sea coast (i.e., Kaktovik, Nuiqsut, and Utqigvik) and appropriate subsistence user organizations (i.e., the Alaska Nannut Co-Management Council, the Eskimo Walrus Commission, or North Slope Borough) to discuss the location, timing, and methods of activities and identify and mitigate any potential conflicts with subsistence walrus and polar bear hunting activities. Applicants must specifically inquire of relevant communities and organizations if the activity will interfere with the availability of Pacific walruses and/or polar bears for the subsistence use of those groups. Requests for an LOA must include documentation of all consultations with potentially affected user groups. Documentation must include a summary of any concerns identified by community members and hunter organizations and the applicant’s responses to identified concerns.


§ 18.123 How the Service will evaluate a request for a Letter of Authorization (LOA).

(a) We will evaluate each request for an LOA based on the specific activity and the specific geographic location. We will determine whether the level of activity identified in the request exceeds that analyzed by us in considering the number of animals estimated to be taken and evaluating whether there will be a negligible impact on the species or stock and an unmitigable adverse impact on the availability of the species or stock for subsistence uses. If the level of activity is greater, we will reevaluate our findings to determine if those findings continue to be appropriate based on the combined estimated take of the greater level of activity that the applicant has requested and all other activities proposed during the time of the activities in the LOA request. Depending on the results of the evaluation, we may grant the authorization, add further conditions, or deny the authorization.


(b) In accordance with § 18.27(f)(5), we will make decisions concerning withdrawals of an LOA, either on an individual or class basis, only after notice and opportunity for public comment.


(c) The requirement for notice and public comment in paragraph (b) of this section will not apply should we determine that an emergency exists that poses a significant risk to the well-being of the species or stocks of polar bears or Pacific walruses.


§ 18.124 Authorized take allowed under a Letter of Authorization (LOA).

(a) An LOA allows for the nonlethal, non-injurious, incidental, but not intentional take by Level B harassment, as defined in § 18.3 and under section 3 of the Marine Mammal Protection Act (16 U.S.C. 1362), of Pacific walruses and/or polar bears while conducting oil and gas industry exploration, development, and production within the Beaufort Sea ITR region described in § 18.120.


(b) Each LOA will identify terms and conditions for each activity and location.


§ 18.125 Prohibited take under a Letter of Authorization (LOA).

Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as:


(a) Intentional take, Level A harassment, as defined in section 3 of the Marine Mammal Protection Act (16 U.S.C. 1362), and lethal incidental take of polar bears or Pacific walruses; and


(b) Any take that fails to comply with this subpart or with the terms and conditions of an LOA.


§ 18.126 Mitigation.

(a) Mitigation measures for all Letters of Authorization (LOAs). Holders of an LOA must implement policies and procedures to conduct activities in a manner that affects the least practicable adverse impact on Pacific walruses and/or polar bears, their habitat, and the availability of these marine mammals for subsistence uses. Adaptive management practices, such as temporal or spatial activity restrictions in response to the presence of marine mammals in a particular place or time or the occurrence of Pacific walruses and/or polar bears engaged in a biologically significant activity (e.g., resting, feeding, denning, or nursing, among others), must be used to avoid interactions with and minimize impacts to these animals and their availability for subsistence uses.


(1) All holders of an LOA must:


(i) Cooperate with the Service’s Marine Mammals Management Office and other designated Federal, State, and local agencies to monitor and mitigate the impacts of oil and gas industry activities on Pacific walruses and polar bears. Where information is insufficient to evaluate the potential effects of activities on walruses, polar bears, and the subsistence use of these species, holders of an LOA may be required to participate in joint monitoring and/or research efforts to address these information needs and ensure the least practicable impact to these resources.


(ii) Designate trained and qualified personnel to monitor for the presence of Pacific walruses and polar bears, initiate mitigation measures, and monitor, record, and report the effects of oil and gas industry activities on Pacific walruses and/or polar bears.


(iii) Have an approved Pacific walrus and polar bear safety, awareness, and interaction plan on file with the Service’s Marine Mammals Management Office and onsite and provide polar bear awareness training to certain personnel. Interaction plans must include:


(A) The type of activity and where and when the activity will occur (i.e., a summary of the plan of operation);


(B) A food, waste, and other “bear attractants” management plan;


(C) Personnel training policies, procedures, and materials;


(D) Site-specific walrus and polar bear interaction risk evaluation and mitigation measures;


(E) Walrus and polar bear avoidance and encounter procedures; and


(F) Walrus and polar bear observation and reporting procedures.


(2) All applicants for an LOA must contact affected subsistence communities and hunter organizations to discuss potential conflicts caused by the activities and provide the Service documentation of communications as described in § 18.122.


(b) Mitigation measures for onshore activities. Holders of an LOA must undertake the following activities to limit disturbance around known polar bear dens:


(1) Attempt to locate polar bear dens. Holders of an LOA seeking to carry out onshore activities during the denning season (November-April) must conduct two separate surveys for occupied polar bear dens in all denning habitat within 1.6 km (1 mi) of proposed activities using aerial infrared (AIR) imagery. Further, all denning habitat within 1.6 km (1 mi) of areas of proposed seismic surveys must be surveyed three separate times with AIR technology.


(i) The first survey must occur between the dates of November 25 and December 15, the second between the dates of December 5 and December 31, and the third (if required) between the dates of December 15 and January 15.


(ii) AIR surveys will be conducted during darkness or civil twilight and not during daylight hours. Ideal environmental conditions during surveys would be clear, calm, and cold. If there is blowing snow, any form of precipitation, or other sources of airborne moisture, use of AIR detection is not advised. Flight crews will record and report environmental parameters including air temperature, dew point, wind speed and direction, cloud ceiling, and percent humidity, and a flight log will be provided to the Service within 48 hours of the flight.


(iii) A scientist with experience in the in-air interpretation of AIR imagery will be on board the survey aircraft to analyze the AIR data in real-time. The data (infrared video) will be made available for viewing by the Service immediately upon return of the survey aircraft to the base of operations.


(iv) All observed or suspected polar bear dens must be reported to the Service prior to the initiation of activities.


(2) Observe the exclusion zone around known polar bear dens. Operators must observe a 1.6-km (1-mi) operational exclusion zone around all putative polar bear dens during the denning season (November-April, or until the female and cubs leave the areas). Should previously unknown occupied dens be discovered within 1 mile of activities, work must cease, and the Service contacted for guidance. The Service will evaluate these instances on a case-by-case basis to determine the appropriate action. Potential actions may range from cessation or modification of work to conducting additional monitoring, and the holder of the authorization must comply with any additional measures specified.


(3) Use the den habitat map developed by the USGS. A map of potential coastal polar bear denning habitat can be found at: https://www.usgs.gov/centers/asc/science/polar-bear-maternal-denning?qt-science_center_objects=4#qt-science_center_objects. This measure ensures that the location of potential polar bear dens is considered when conducting activities in the coastal areas of the Beaufort Sea.


(4) Polar bear den restrictions. Restrict the timing of the activity to limit disturbance around dens, including putative and known dens.


(c) Mitigation measures for operational and support vessels. (1) Operational and support vessels must be staffed with dedicated marine mammal observers to alert crew of the presence of walruses and polar bears and initiate adaptive mitigation responses.


(2) At all times, vessels must maintain the maximum distance possible from concentrations of walruses or polar bears. Under no circumstances, other than an emergency, should any vessel approach within an 805-m (0.5-mi) radius of walruses or polar bears observed on land or ice.


(3) Vessel operators must take every precaution to avoid harassment of concentrations of feeding walruses when a vessel is operating near these animals. Vessels should reduce speed and maintain a minimum 805-m (0.5-mi) operational exclusion zone around feeding walrus groups. Vessels may not be operated in such a way as to separate members of a group of walruses (i.e., greater than two) from other members of the group. When weather conditions require, such as when visibility drops, vessels should adjust speed accordingly to avoid the likelihood of injury to walruses.


(4) Vessels bound for the Beaufort Sea ITR region may not transit through the Chukchi Sea prior to July 1. This operating condition is intended to allow walruses the opportunity to move through the Bering Strait and disperse from the confines of the spring lead system into the Chukchi Sea with minimal disturbance. It is also intended to minimize vessel impacts upon the availability of walruses for Alaska Native subsistence hunters. Exemption waivers to this operating condition may be issued by the Service on a case-by-case basis, based upon a review of seasonal ice conditions and available information on walrus and polar bear distributions in the area of interest.


(5) All vessels must avoid areas of active or anticipated walrus or polar bear subsistence hunting activity as determined through community consultations.


(6) In association with marine activities, we may require trained marine mammal monitors on the site of the activity or onboard ships, aircraft, icebreakers, or other support vessels or vehicles to monitor the impacts of oil and gas industry activity on polar bear and Pacific walruses.


(d) Mitigation measures for aircraft. (1) Operators of support aircraft shall, at all times, conduct their activities at the maximum distance possible from concentrations of walruses or polar bears.


(2) Aircraft operations within the ITR area will maintain an altitude of 1,500 ft above ground level when safe and operationally possible.


(3) Under no circumstances, other than an emergency, will aircraft operate at an altitude lower than 457 m (1,500 ft) within 805 m (0.5 mi) of walruses or polar bears observed on ice or land. Helicopters may not hover or circle above such areas or within 805 m (0.5 mi) of such areas. When weather conditions do not allow a 457-m (1,500-ft) flying altitude, such as during severe storms or when cloud cover is low, aircraft may be operated below this altitude. However, when weather conditions necessitate operation of aircraft at altitudes below 457 m (1,500 ft), the operator must avoid areas of known walrus and polar bear concentrations and will take precautions to avoid flying directly over or within 805 m (0.5 mile) of these areas.


(4) Plan all aircraft routes to minimize any potential conflict with active or anticipated walrus or polar bear hunting activity as determined through community consultations.


(e) Mitigation measures for the subsistence use of walruses and polar bears. Holders of an LOA must conduct their activities in a manner that, to the greatest extent practicable, minimizes adverse impacts on the availability of Pacific walruses and polar bears for subsistence uses.


(1) Community consultation. Prior to receipt of an LOA, applicants must consult with potentially affected communities and appropriate subsistence user organizations to discuss potential conflicts with subsistence walrus and polar bear hunting caused by the location, timing, and methods of operations and support activities (see § 18.122 for details). If community concerns suggest that the activities may have an adverse impact on the subsistence uses of these species, the applicant must address conflict avoidance issues through a plan of cooperation as described in paragraph (e)(2) of this section.


(2) Plan of cooperation (POC). When appropriate, a holder of an LOA will be required to develop and implement a Service-approved POC.


(i) The POC must include a description of the procedures by which the holder of the LOA will work and consult with potentially affected subsistence hunters and a description of specific measures that have been or will be taken to avoid or minimize interference with subsistence hunting of walruses and polar bears and to ensure continued availability of the species for subsistence use.


(ii) The Service will review the POC to ensure that any potential adverse effects on the availability of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards to ensure the least practicable adverse impact on the availability of walruses and polar bears for subsistence use.


§ 18.127 Monitoring.

Holders of an LOA must develop and implement a site-specific, Service-approved marine mammal monitoring and mitigation plan to monitor and evaluate the effectiveness of mitigation measures and the effects of activities on walruses, polar bears, and the subsistence use of these species and provide trained, qualified, and Service-approved onsite observers to carry out monitoring and mitigation activities identified in the marine mammal monitoring and mitigation plan.


§ 18.128 Reporting requirements.

Holders of a Letter of Authorization (LOA) must report the results of monitoring and mitigation activities to the Service’s Marine Mammals Management Office via email at: [email protected]


(a) In-season monitoring reports. (1) Activity progress reports. Holders of an LOA must:


(i) Notify the Service at least 48 hours prior to the onset of activities;


(ii) Provide the Service weekly progress reports of any significant changes in activities and/or locations; and


(iii) Notify the Service within 48 hours after ending of activities.


(2) Walrus observation reports. Holders of an LOA must report, on a weekly basis, all observations of walruses during any industry activity. Upon request, monitoring report data must be provided in a common electronic format (to be specified by the Service). Information in the observation report must include, but is not limited to:


(i) Date, time, and location of each walrus sighting;


(ii) Number of walruses;


(iii) Sex and age (if known);


(iv) Observer name and contact information;


(v) Weather, visibility, sea state, and sea-ice conditions at the time of observation;


(vi) Estimated range at closest approach;


(vii) Industry activity at time of sighting;


(viii) Behavior of animals sighted;


(ix) Description of the encounter;


(x) Duration of the encounter; and


(xi) Mitigation actions taken.


(3) Polar bear observation reports. Holders of an LOA must report, within 48 hours, all observations of polar bears and potential polar bear dens, during any industry activity. Upon request, monitoring report data must be provided in a common electronic format (to be specified by the Service). Information in the observation report must include, but is not limited to:


(i) Date, time, and location of observation;


(ii) Number of bears;


(iii) Sex and age of bears (if known);


(iv) Observer name and contact information;


(v) Weather, visibility, sea state, and sea-ice conditions at the time of observation;


(vi) Estimated closest distance of bears from personnel and facilities;


(vii) Industry activity at time of sighting;


(viii) Possible attractants present;


(ix) Bear behavior;


(x) Description of the encounter;


(xi) Duration of the encounter; and


(xii) Mitigation actions taken.


(b) Notification of LOA incident report. Holders of an LOA must report, as soon as possible, but within 48 hours, all LOA incidents during any industry activity. An LOA incident is any situation when specified activities exceed the authority of an LOA, when a mitigation measure was required but not enacted, or when injury or death of a walrus or polar bear occurs. Reports must include:


(1) All information specified for an observation report;


(2) A complete detailed description of the incident; and


(3) Any other actions taken.


(c) Final report. The results of monitoring and mitigation efforts identified in the marine mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of the expiration of an LOA, or for production LOAs, an annual report by January 15th of each calendar year. Upon request, final report data must be provided in a common electronic format (to be specified by the Service). Information in the final (or annual) report must include, but is not limited to:


(1) Copies of all observation reports submitted under the LOA;


(2) A summary of the observation reports;


(3) A summary of monitoring and mitigation efforts including areas, total hours, total distances, and distribution;


(4) Analysis of factors affecting the visibility and detectability of walruses and polar bears during monitoring;


(5) Analysis of the effectiveness of mitigation measures;


(6) Analysis of the distribution, abundance, and behavior of walruses and/or polar bears observed; and


(7) Estimates of take in relation to the specified activities.


§ 18.129 Information collection requirements.

(a) We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has approved the collection of information contained in this subpart and assigned OMB control number 1018-0070. You must respond to this information collection request to obtain a benefit pursuant to section 101(a)(5) of the Marine Mammal Protection Act. We will use the information to:


(1) Evaluate the request and determine whether or not to issue specific Letters of Authorization; and


(2) Monitor impacts of activities and effectiveness of mitigation measures conducted under the Letters of Authorization.


(b) Comments regarding the burden estimate or any other aspect of this requirement must be submitted to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, at the address listed in 50 CFR 2.1.


Subpart K – Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska


Effective Date Note:At 84 FR 37745, Aug. 1, 2019, Subpart K was added, effective Aug. 1, 2019 through Aug. 1, 2024.

§ 18.130 Specified activities covered by this subpart.

Regulations in this subpart apply to the nonlethal incidental, but not intentional, take, as defined in 50 CFR 18.3 and under the Marine Mammal Protection Act (16 U.S.C. 1362), of small numbers of northern sea otters (Enhydra lutris kenyoni; hereafter “otter,” “otters,” or “sea otters”) by Hilcorp Alaska, LLC, Harvest Alaska, LLC, and the Alaska Gasline Development Corporation while engaged in activities associated with or in support of oil and gas exploration, development, production, and transportation in Cook Inlet, Alaska.


§ 18.131 Specified geographic region where this subpart applies.

(a) The specified geographic region is Cook Inlet, Alaska, south of a line from the Susitna River Delta to Point Possession (approximately 61°15′54″ N, 150°41′07″ W, to 61°02′19″ N, 150°23′48″ W, WGS 1984) and north of a line from Rocky Cove to Coal Cove (approximately 59°25′56″ N, 153°44′25″ W and 59°23′48″ N, 151°54′28″ W, WGS 1984), excluding Ursus Cove, Iniskin Bay, Iliamna Bay, and Tuxedni Bay.


(b) The geographic area of this incidental take regulation (ITR) includes all Alaska State waters and Outer Continental Shelf Federal waters within this area as well as all adjacent rivers, estuaries, and coastal lands where sea otters may occur, except for those areas explicitly excluded in paragraph (a) of this section.


(c) Map of the Cook Inlet ITR region follows:



§ 18.132 Dates this subpart is in effect.

Regulations in this subpart are effective from August 1, 2019, to August 1, 2024.


§ 18.133 Authorized take allowed under a Letter of Authorization (LOA).

(a) To incidentally take marine mammals pursuant to the regulations in this subpart,, Hilcorp Alaska, LLC, Harvest Alaska, LLC, or the Alaska Gasline Development Corporation (hereafter “the applicant”) must apply for and obtain an LOA in accordance with §§ 18.27(f) and 18.134. The applicant is a U.S. citizen as defined in § 18.27(c).


(b) An LOA allows for the nonlethal, incidental, but not intentional take by harassment of sea otters during activities specified in § 18.130 within the Cook Inlet ITR region described in § 18.131.


(c) Each LOA will set forth:


(1) Permissible methods of incidental take;


(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and the availability of the species for subsistence uses; and


(3) Requirements for monitoring and reporting.


(d) Issuance of the LOA(s) must be based on a determination that the level of take will be consistent with the findings made for the total allowable take under these regulations in this subpart.


§ 18.134 Procedure to obtain a Letter of Authorization (LOA).

(a) The applicant must submit the request for authorization to the U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage, Alaska, 99503, at least 90 days prior to the start of the proposed activity.


(b) The request for an LOA must comply with the requirements set forth in §§ 18.137 through 18.139 and must include the following information:


(1) A plan of operations that describes in detail the proposed activity (type of project, methods, and types and numbers of equipment and personnel, etc.), the dates and duration of the activity, and the specific locations of and areas affected by the activity. Changes to the proposed project without prior authorization may invalidate an LOA.


(2) A site-specific marine mammal monitoring and mitigation plan to monitor and mitigate the effects of the activity on sea otters.


(3) An assessment of potential effects of the proposed activity on subsistence hunting of sea otters.


(i) The applicant must communicate with potentially affected subsistence communities along the Cook Inlet coast and appropriate subsistence user organizations to discuss the location, timing, and methods of proposed activities and identify any potential conflicts with subsistence hunting activities.


(ii) The applicant must specifically inquire of relevant communities and organizations if the proposed activity will interfere with the availability of sea otters for the subsistence use of those groups.


(iii) The applicant must include documentation of consultations with potentially affected user groups. Documentation must include a list of persons contacted, a summary of input received, any concerns identified by community members and hunter organizations, and the applicant’s responses to identified concerns.


(iv) If any concerns regarding effects of the activity on sea otter subsistence harvest are identified, the applicant will provide to the Service a Plan of Cooperation (POC) with specific steps for addressing those concerns, including a schedule for ongoing community engagement and suggested measures that will be implemented to mitigate any potential conflicts with subsistence hunting.


§ 18.135 How the Service will evaluate a request for a Letter of Authorization (LOA).

(a) The Service will evaluate each request for an LOA to determine if the proposed activity is consistent with the analysis and findings made for these regulations. Depending on the results of the evaluation, we may grant the authorization, add further conditions, or deny the authorization.


(b) Once issued, the Service may withdraw or suspend an LOA if the project activity is modified in a way that undermines the results of the previous evaluation, if the conditions of the regulations in this subpart are not being substantially complied with, or if the taking allowed is or may be having more than a negligible impact on the affected stock of sea otters or an unmitigable adverse impact on the availability of sea otters for subsistence uses.


(c) The Service will make decisions concerning withdrawals of an LOA, either on an individual or class basis, only after notice and opportunity for public comment in accordance with § 18.27(f)(5). The requirement for notice and public comment will not apply should we determine that an emergency exists that poses a significant risk to the well-being of the species or stocks of sea otters.


§ 18.136 Prohibited take under a Letter of Authorization (LOA).

(a) Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as: Intentional take, lethal incidental take of sea otters, and any take that fails to comply with this subpart or with the terms and conditions of an LOA.


(b) If project activities cause unauthorized take, the applicant must take the following actions:


(1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety) and report the details of the incident to the Service MMM within 48 hours; and


(2) Suspend further activities until the Service has reviewed the circumstances, determined whether additional mitigation measures are necessary to avoid further unauthorized taking, and notified the applicant that it may resume project activities.


§ 18.137 Mitigation.

(a) Mitigation measures for all LOAs. The applicant, including all personnel operating under the applicant’s authority (or “operators,” including contractors, subcontractors, and representatives) must undertake the following activities to avoid and minimize take of sea otters by harassment.


(1) Implement policies and procedures to avoid interactions with and minimize to the greatest extent practicable adverse impacts on sea otters, their habitat, and the availability of these marine mammals for subsistence uses.


(2) Develop avoidance and minimization policies and procedures, in cooperation with the Service, that include temporal or spatial activity restrictions to be used in response to the presence of sea otters engaged in a biologically significant activity (e.g., resting, feeding, hauling out, mating, or nursing).


(3) Cooperate with the Service’s MMM Office and other designated Federal, State, and local agencies to monitor and mitigate the impacts of oil and gas industry activities on sea otters.


(4) Allow Service personnel or the Service’s designated representative to board project vessels or visit project work sites for the purpose of monitoring impacts to sea otters and subsistence uses of sea otters at any time throughout project activities so long as it is safe to do so.


(5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of sea otters, initiate mitigation measures, and monitor, record, and report the effects of the activities on sea otters. The applicant is responsible for providing training to PSOs to carry out mitigation and monitoring.


(6) Have an approved mitigation and monitoring plan on file with the Service MMM and onsite that includes the following information:


(i) The type of activity and where and when the activity will occur (i.e., a summary of the plan of operation);


(ii) Personnel training policies, procedures, and materials;


(iii) Site-specific sea otter interaction risk evaluation and mitigation measures;


(iv) Sea otter avoidance and encounter procedures; and


(v) Sea otter observation and reporting procedures.


(7) Contact affected subsistence communities and hunter organizations to identify any potential conflicts that may be caused by the proposed activities and provide the Service documentation of communications as described in § 18.134.


(b) Mitigation measures for in-water noise-generating work. The applicant must carry out the following measures:


(1) Mitigation zones. Establish mitigation zones for project activities that generate underwater sound levels ≥160 decibels (dB) between 125 hertz (Hz) and 38 kilohertz (kHz) (hereafter “noise-generating work”).


(i) All dB levels are referenced to 1 µPa for underwater sound. All dB levels herein are dBRMS unless otherwise noted; dBRMS refers to the root-mean-squared dB level, the square root of the average of the squared sound pressure level, typically measured over 1 second.


(ii) Mitigation zones must include all in-water areas where work-related sound received by sea otters will match the levels and frequencies in paragraph (b)(1) of this section. Mitigation zones will be designated as follows:


(A) An Exclusion Zone (EZ) will be established throughout all areas where sea otters may be exposed to sound levels capable of causing Level A take as shown in the table in paragraph (b)(1)(iii) of this section.


(B) The Safety Zone (SZ) is an area larger than the EZ and will include all areas within which sea otters may be exposed to noise levels that will likely result in Level B take as shown in the table in paragraph (b)(1)(iii) of this section.


(C) Both the EZ and SZ will be centered on the sound source. The method of estimation and minimum radius of each zone will be specified in any LOA issued under § 18.135 and will be based on onsite sound source verification (SSV), if available, or the best available science.


(D) Onsite SSV testing will be conducted prior to two-dimensional (2D) and three-dimensional (3D) seismic surveys.


(E) Seismic surveys (2D and 3D) must be conducted using equipment that generates the lowest practicable levels of underwater sound within the range of frequencies audible to sea otters.


(iii) Summary of acoustic exposure thresholds for take of sea otters from underwater sound in the frequency range 125 Hz-38 kHz:


Table 1 to § 18.137(b)(1)(iii)

Marine mammals
Injury (Level A) threshold
1
Disturbance (Level B) threshold
Impulsive
Non-impulsive
All
Sea otters232 dB peak; 203 dB SELCUM219 dB SELCUM160 dBRMS.


1 Based on acoustic criteria for otariid pinnipeds from the National Marine Fisheries Service. Sound source types are separated into impulsive (e.g., seismic, pipe driving, sub-bottom profiler) and non-impulsive (drilling, water jet) and require estimation of the distance to the peak received sound pressure level (peak) and 24-hr cumulative sound exposure level (SELCUM).


(2) Monitoring. Designate trained and qualified PSOs or “observers” to monitor for the presence of sea otters in mitigation zones, initiate mitigation measures, and record and report the effects of project work on otters for all noise-generating work.


(3) Mitigation measures for sea otters in mitigation zones. The following actions will be taken in response to otters in mitigation zones:


(i) Sea otters that are under no visible distress within the SZ must be monitored continuously. Power down, shut down, or maneuver away from the sea otter if practicable to reduce sound received by the animal. Maintain 100-m (301-ft) separation distance whenever possible. Exposures in this zone are counted as one Level B take per animal per day.


(ii) When sea otters are observed within or approaching the EZ, noise-generating work as defined in paragraph (b)(1) of this section must be immediately shut down or powered down to reduce the size of the zone sufficiently to exclude the animal from the zone. Vessel speed or course may be altered to achieve the same task. Exposures in this zone are counted as one Level A take per animal per day.


(iii) When sea otters are observed in visible distress (for example, vocalizing, repeatedly spy-hopping, or fleeing), noise-generating work as defined in paragraph (b)(1) of this section must be immediately shut down or powered down to reduce the size of the zone sufficiently to exclude the animal from the zone.


(iv) Following a shutdown, the noise-generating activity will not resume until the sea otter has cleared the EZ. The animal will be considered to have cleared the EZ if it is visually observed to have left the EZ or has not been seen within the EZ for 30 minutes or longer.


(4) Ramp-up procedures. Prior to noise-generating work, a “ramp-up” procedure must be used to increase the levels of underwater sound from noise-generating work at a gradual rate.


(i) Seismic surveys: A ramp-up will be used at the initial start of airgun operations and prior to restarting after any period greater than 10 minutes without airgun operations, including a power-down or shutdown event (described in paragraphs (b)(6) and (7) of this section). During geophysical work, the number and total volume of airguns will be increased incrementally until the full volume is achieved. The rate of ramp-up will be no more than 6 dB per 5-minute period. Ramp-up will begin with the smallest gun in the array that is being used for all airgun array configurations. During the ramp-up, the applicable mitigation zones (based on type of airgun and sound levels produced) must be maintained. It will not be permissible to ramp up the full array from a complete shutdown in thick fog or at other times when the outer part of the EZ is not visible. Ramp-up of the airguns will not be initiated if a sea otter is sighted within the EZ at any time.


(ii) Pile/pipe driving: A ramp-up of the hammering will precede each day’s pipe/pile driving activities or if pipe/pile driving has ceased for more than 1 hour. The EZ will be determined clear of sea otters 30 minutes prior to a ramp-up to ensure no sea otters are within or entering the EZ. Initial hammering starts will not begin during periods of poor visibility (e.g., night, fog, wind) when the entire EZ is not visible. The ramp-up procedure for impact hammers involves initially starting with three soft strikes at 40 percent energy, followed by a 1-minute waiting period followed by two subsequent three-strike sets. For vibratory hammers, initial noise generation will be limited to 15 seconds at a reduced energy level, followed by a 1-minute waiting period. This cycle will be repeated two additional times. Monitoring will occur during all hammering sessions.


(iii) All activities: Any shutdown due to sea otters sighted within the EZ must be followed by a 30-minute all-clear period and then a standard full ramp-up. Any shutdown for other reasons resulting in the cessation of the sound source for a period greater than 30 minutes must also be followed by full ramp-up procedures. If otters are observed during a ramp-up effort or prior to startup, a PSO must record the observation and monitor the animal’s position until it moves out of visual range. Noise-generating work may commence if, after a full and gradual effort to ramp up the underwater sound level, the otter is outside of the EZ and does not show signs of visible distress (for example, vocalizing, repeatedly spy-hopping, or fleeing).


(5) Startup procedures. (i) Visual monitoring must begin at least 30 minutes prior to, and continue throughout, ramp-up efforts.


(ii) Visual monitoring must continue during all noise-generating work occurring in daylight hours.


(6) Power-down procedures. A power-down procedure involves reducing the volume of underwater sound generated to prevent an otter from entering the EZ.


(i) Whenever a sea otter is detected outside the EZ and, based on its position and motion relative to the noise-generating work, appears likely to enter the EZ but has not yet done so, operators may reduce power to noise-generating equipment as an alternative to a shutdown.


(ii) Whenever a sea otter is detected in the SZ, an operator may power down when practicable to reduce Level B take.


(iii) During a power-down of seismic work, the number of airguns in use may be reduced, such that the EZ is reduced, making the sea otters unlikely to enter the EZ. A mitigation airgun (airgun of small volume such as the 10-in
3 gun) will be operated continuously during a power-down of seismic work.


(iv) After a power-down, noise-generating work will not resume until the sea otter has cleared the applicable EZ. The animal will be considered to have cleared the applicable zone if it is visually observed to have left the EZ and has not been seen within the zone for 30 minutes.


(7) Shutdown procedure. A shutdown occurs when all noise-generating work is suspended.


(i) Noise-generating work will be shut down completely if a sea otter enters the EZ.


(ii) The shutdown procedure will be accomplished within several seconds of the determination that a sea otter is either in or about to enter the EZ or as soon as practicable considering worker safety and equipment integrity.


(iii) Noise-generating work will not proceed until all sea otters have cleared the EZ and the PSOs on duty are confident that no sea otters remain within the EZ. An otter will be considered to have cleared the EZ if it is visually observed to have left the EZ or has not been seen within the zone for 30 minutes.


(iv) Visual monitoring must continue for 30 minutes after use of the acoustic source ceases or the sun sets, whichever is later.


(8) Emergency shutdown. If observations are made or credible reports are received that one or more sea otters are within the area of noise-generating work and are indicating acute distress associated with the work, such as any injury due to seismic noise or persistent vocalizations indicating separation of mother from pup, the work will be immediately shut down and the Service contacted. Work will not be restarted until review and approval by the Service.


(9) To ensure the proposed activities remain consistent with the estimated take of sea otters, operators may not conduct 3D seismic surveys where doing so will generate underwater noise levels that are likely to exceed acoustic exposure thresholds within areas of estimated sea otter densities greater than 0.026 otters per km. Maps of the areas will be provided to 3D seismic operators and may be adjusted based on SSV results. This does not apply to 2D seismic surveys.


(c) Mitigation for all in-water construction and demolition activity. (1) The applicant must implement a minimum EZ of a 10-m radius around the in-water construction and demolition. If a sea otter comes within or approaches the EZ, such operations must cease. A larger EZ may be required for some activities, such as blasting, and will be specified in the LOA.


(2) All work in intertidal areas shall be conducted during low tide when the site is dewatered to the maximum extent practicable.


(3) The applicant must evaluate alternatives to pile-supported facilities. If no practicable alternative exists, the applicant must then evaluate the use of sound-attenuation devices such as pile caps and cushions, bubble curtains, and dewatered cofferdams during construction. The Service may require sound-attenuation devices or alternatives to pile-supported designs.


(d) Measures for vessel-based activities. (1) Vessel operators must take every precaution to avoid harassment of sea otters when a vessel is operating near these animals.


(2) Vessels must remain at least 500 m from rafts of otters unless safety is a factor.


(3) Vessels must reduce speed and maintain a distance of 100 m (328 ft) from all sea otters unless safety is a factor.


(4) Vessels must not be operated in such a way as to separate members of a group of sea otters from other members of the group.


(5) When weather conditions require, such as when visibility drops, vessels must adjust speed accordingly to avoid the likelihood of injury to sea otters.


(6) Vessels in transit and support vessels must use established navigation channels or commonly recognized vessel traffic corridors, and must avoid alongshore travel in shallow water (

(7) All vessels must avoid areas of active or anticipated subsistence hunting for sea otters as determined through community consultations.


(8) Vessel operators must be provided written guidance for avoiding collisions and minimizing disturbances to sea otters. Guidance will include measures identified in paragraphs (d)(1) through (7) of this section.


(e) Mitigation measures for aircraft activities. (1) Aircraft must maintain a minimum altitude of 305 m (1,000 ft) to avoid unnecessary harassment of sea otters, except during takeoff and landing, and when a lower flight altitude is necessary for safety due to weather or restricted visibility.


(2) Aircraft must not be operated in such a way as to separate members of a group of sea otters from other members of the group.


(3) All aircraft must avoid areas of active or anticipated subsistence hunting for sea otters as determined through community consultations.


(4) Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones.


§ 18.138 Monitoring.

(a) Operators shall work with PSOs to apply mitigation measures, and shall recognize the authority of PSOs, up to and including stopping work, except where doing so poses a significant safety risk to personnel.


(b) Duties of PSOs include watching for and identifying sea otters, recording observation details, documenting presence in any applicable monitoring zone, identifying and documenting potential harassment, and working with operators to implement all appropriate mitigation measures.


(c) A sufficient number of PSOs will be available to meet the following criteria: 100 percent monitoring of EZs during all daytime periods of underwater noise-generating work; a maximum of 4 consecutive hours on watch per PSO; a maximum of approximately 12 hours on watch per day per PSO.


(d) All PSOs will complete a training course designed to familiarize individuals with monitoring and data collection procedures. A field crew leader with prior experience as a sea otter observer will supervise the PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be made available for the Service to review.


(e) Observers will be provided with reticule binoculars (10×42), big-eye binoculars or spotting scopes (30x), inclinometers, and range finders. Field guides, instructional handbooks, maps and a contact list will also be made available.


(f) Observers will collect data using the following procedures:


(1) All data will be recorded onto a field form or database.


(2) Global positioning system data, sea state, wind force, and weather will be collected at the beginning and end of a monitoring period, every hour in between, at the change of an observer, and upon sightings of sea otters.


(3) Observation records of sea otters will include date; time; the observer’s locations, heading, and speed (if moving); weather; visibility; number of animals; group size and composition (adults/juveniles); and the location of the animals (or distance and direction from the observer).


(4) Observation records will also include initial behaviors of the sea otters, descriptions of project activities and underwater sound levels being generated, the position of sea otters relative to applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent reactions to the project activities before and after mitigation.


(5) For all otters in or near a mitigation zone, observers will record the distance from the vessel to the sea otter upon initial observation, the duration of the encounter, and the distance at last observation in order to monitor cumulative sound exposures.


(6) Observers will note any instances of animals lingering close to or traveling with vessels for prolonged periods of time.


§ 18.139 Reporting requirements.

(a) Operators must notify the Service at least 48 hours prior to commencement of activities.


(b) Weekly reports will be submitted to the Service during in-water seismic activities. The reports will summarize project activities, monitoring efforts conducted by PSOs, the number of sea otters detected, the number exposed to sound levels greater than 160 dB, SSV results, and descriptions of all behavioral reactions of sea otters to project activities.


(c) Monthly reports will be submitted to the Service MMM for all months during which noise-generating work takes place. The monthly report will contain and summarize the following information: Dates, times, weather, and sea conditions (including Cook Inlet marine state and wind force) when sea otters were sighted; the number, location, distance from the sound source, and behavior of the otters; the associated project activities; and a description of the implementation and effectiveness of mitigation measures with a discussion of any specific behaviors the otters exhibited in response to mitigation.


(d) A final report will be submitted to the Service within 90 days after the expiration of each LOA. It will include the following items:


(1) Summary of monitoring efforts (hours of monitoring, activities monitored, number of PSOs, and, if requested by the Service, the daily monitoring logs).


(2) All project activities will be described, along with any additional work yet to be done. Factors influencing visibility and detectability of marine mammals (e.g., sea state, number of observers, and fog and glare) will be discussed.


(3) The report will also address factors affecting the presence and distribution of sea otters (e.g., weather, sea state, and project activities). An estimate will be included of the number of sea otters exposed to noise at received levels greater than or equal to 160 dB (based on visual observation).


(4) The report will describe changes in sea otter behavior resulting from project activities and any specific behaviors of interest.


(5) It will provide a discussion of the mitigation measures implemented during project activities and their observed effectiveness for minimizing impacts to sea otters. Sea otter observation records will be provided to the Service in the form of electronic database or spreadsheet files.


(6) The report will also evaluate the effectiveness of the POC (if applicable) for preventing impacts to subsistence users of sea otters, and it will assess any effects the operations may have had on the availability of sea otters for subsistence harvest.


(e) All reports shall be submitted by email to [email protected]


(f) Injured, dead, or distressed sea otters that are not associated with project activities (e.g., animals known to be from outside the project area, previously wounded animals, or carcasses with moderate to advanced decomposition or scavenger damage) must be reported to the Service within 24 hours of the discovery to either the Service MMM (1-800-362-5148, business hours); or the Alaska SeaLife Center in Seward (1-888-774-7325, 24 hours a day); or both. Photographs, video, location information, or any other available documentation shall be provided to the Service.


(g) Operators must notify the Service upon project completion or end of the work season.


§ 18.140 Measures to reduce impacts to subsistence users.

(a) Prior to conducting the work, the applicant will take the following steps to reduce potential effects on subsistence harvest of sea otters:


(1) Avoid work in areas of known sea otter subsistence harvest;


(2) Discuss the planned activities with subsistence stakeholders including Cook Inlet villages, traditional councils, and the Cook Inlet Regional Citizens Advisory Council;


(3) Identify and work to resolve concerns of stakeholders regarding the project’s effects on subsistence hunting of sea otters; and


(b) If any unresolved or ongoing concerns remain, develop a POC in consultation with the Service and subsistence stakeholders to address these concerns. The POC must include a schedule for ongoing community engagement and specific measures for mitigating any potential conflicts with subsistence hunting.


§ 18.141 Information collection requirements.

(a) We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has approved the collection of information contained in this subpart and assigned OMB control number 1018-0070. The applicant must respond to this information collection request to obtain a benefit pursuant to section 101(a)(5) of the Marine Mammal Protection Act. We will use the information to:


(1) Evaluate the application and determine whether or not to issue specific LOAs; and


(2) Monitor impacts of activities and effectiveness of mitigation measures conducted under the LOAs.


(b) Comments regarding the burden estimate or any other aspect of this requirement must be submitted to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, at the address listed in 50 CFR part 2.1.


PART 19 – AIRBORNE HUNTING


Authority:Fish and Wildlife Act of 1956, 85 Stat. 480, as amended, 86 Stat. 905 (16 U.S.C. 742a – j-1).


Source:39 FR 1177, Jan. 4, 1974, unless otherwise noted.

Subpart A – Introduction

§ 19.1 Purpose of regulations.

The regulations contained in this part provide rules relative to the prohibition against shooting or harassing of wildlife from any aircraft, provide the requirements for the contents and filing of annual reports by the States regarding permits issued for such shooting or harassing, and provide regulations necessary for effective enforcement of the Fish and Wildlife Act of 1956 as amended (16 U.S.C. 742a – j-1).


§ 19.2 Scope of regulations.

The regulations contained in this part apply to all persons within the territorial jurisdiction of the United States, to all United States citizens whether within the territorial jurisdiction of the United States or on the high seas or on board aircraft in flight over the high seas, and to all persons on board aircraft belonging in whole or in part to any United States citizen, firm, or partnership, or corporation created by or under the laws of the United States, or any State, territory or possession thereof.


§ 19.3 Relation to other laws.

The exemptions to general prohibitions of the Fish and Wildlife Act of 1956, that permit airborne hunting in certain circumstances (See subpart B of this part) do not supersede, or authorize the violation of, other laws designed for the conservation or protection of wildlife, including those laws prohibiting the shooting or harassing of bald and golden eagles, polar bears and other marine mammals, migratory birds, and other wildlife, except to the extent that airborne hunting is authorized by regulations or permits issued under authority of those laws. (See e.g., § 21.41 of this subchapter.)


§ 19.4 Definitions.

In addition to definitions contained in part 10 of this subchapter, and unless the context otherwise requires, in this part 19:


Harass means to disturb, worry, molest, rally, concentrate, harry, chase, drive, herd or torment.


Subpart B – Prohibitions

§ 19.11 General prohibitions.

(a) Except as otherwise authorized by the Fish and Wildlife Act of 1956 as amended, no person shall:


(1) While airborne in any aircraft shoot or attempt to shoot for the purpose of capturing or killing any wildlife;


(2) Use an aircraft to harass any wildlife; or


(3) Knowingly participate in using an aircraft whether in the aircraft or on the ground for any purpose referred to in paragraph (a) (1) or (2) of this section.


(b) The acts prohibited in this section include, but are not limited to, any person who:


(1) Pilots or assists in the operation of an aircraft from which another person shoots or shoots at wildlife while airborne, or


(2) While on the ground takes or attempts to take any wildlife by means, aid, or use of an aircraft.


§ 19.12 Exceptions to general prohibitions.

The prohibitions of the preceding section shall not apply to any person who:


(1) Is acting within the scope of his official duties as an employee or authorized agent of a State or the United States to administer or protect or aid in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life or crops; or


(2) Is acting within the limitations of a permit referred to in § 19.21 or § 19.31 of this part.


Subpart C – Federal Permits

§ 19.21 Limitation on Federal permits.

No Federal permits will be issued to authorize any person to hunt, shoot, or harass any wildlife from an aircraft, except for Federal permits to scare or herd migratory birds referred to in § 21.41 of this subchapter.


Subpart D – State Permits and Annual Report Requirements

§ 19.31 State permits.

(a) Except as provided in § 19.3, States may issue permits to persons to engage in airborne hunting or harassing of wildlife for purposes of administering or protecting land, water, wildlife, livestock, domestic animals, human life or crops. States may not issue permits for the purpose of sport hunting.


(b) Upon issuance of a permit by a State to a person pursuant to this section, the issuing authority will provide immediate notification to the Special Agent in Charge having jurisdiction according to § 10.22.


§ 19.32 Annual reporting requirements.

(a) Any State issuing permits to persons to engage in airborne hunting or harassing of wildlife or any State whose employees or agents participate in airborne hunting or harassing of wildlife for purposes of administering or protecting land, water, wildlife, livestock, domestic animals, human life or crops, shall file with the Director, an annual report on or before July 1 for the preceding calendar year ending December 31.


(b) The annual report required by this section shall contain the following information as to each such permit issued:


(1) The name and address of each person to whom a permit was issued.


(2) Permit number and inclusive dates during which permit was valid.


(3) The aircraft number of the aircraft used and the location where such aircraft was based.


(4) Common name and number of the wildlife for which authorization to take was given and a description of the area from which the wildlife were authorized to be taken.


(5) The purpose for which the permit was issued, specifically identifying whether the permit was issued to protect land, water, wildlife, livestock, domestic animals, crops, or human life.


(6) The common name and number of wildlife taken by permittees and State employees or agents.


(c) A compilation of all annual reports required by this section shall be made by the Director and furnished to any State filing such annual report.


PART 20 – MIGRATORY BIRD HUNTING


Authority:16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.



Source:38 FR 22021, Aug. 15, 1973, unless otherwise noted.

Subpart A – Introduction

§ 20.1 Scope of regulations.

(a) In general. The regulations contained in this part relate only to the hunting of migratory game birds, and crows.


(b) Procedural and substantive requirements. Migratory game birds may be taken, possessed, transported, shipped, exported, or imported only in accordance with the restrictions, conditions, and requirements contained in this part. Crows may be taken, possessed, transported, exported, or imported only in accordance with subpart H of this part and the restrictions, conditions, and requirements prescribed in § 20.133.


§ 20.2 Relation to other provisions.

(a) Migratory bird permits. The provisions of this part shall not be construed to alter the terms of any permit or other authorization issued pursuant to part 21 of this subchapter.


(b) Migratory bird hunting stamps. The provisions of this part are in addition to the provisions of the Migratory Bird Hunting Stamp Act of 1934 (48 Stat. 451, as amended; 16 U.S.C. 718a).


(c) National wildlife refuges. The provisions of this part are in addition to, and are not in lieu of, any other provision of law respecting migratory game birds under the National Wildlife Refuge System Administration Act of 1966 (80 Stat. 927, as amended; 16 U.S.C. 668dd) or any regulation made pursuant thereto.


(d) State Laws for the protection of migratory birds. No statute or regulation of any State shall be construed to relieve a person from the restrictions, conditions, and requirements contained in this part, however, nothing in this part shall be construed to prevent the several States from making and enforcing laws or regulations not inconsistent with these regulations and the conventions between the United States and any foreign country for the protection of migratory birds or with the Migratory Bird Treaty Act, or which shall give further protection to migratory game birds.


(e) Migratory bird subsistence harvest in Alaska. The provisions of this part, except for paragraphs (a) through (d) of this section, are not applicable to the regulations governing the migratory bird subsistence harvest in Alaska (part 92 of this subchapter) unless specifically referenced in part 92 of subchapter G of this chapter.


[38 FR 22021, Aug. 15, 1973, as amended at 68 FR 43027, July 21, 2003]


Subpart B – Definitions

§ 20.11 What terms do I need to understand?

For the purpose of this part, the following terms shall be construed, respectively, to mean and to include:


(a) Migratory game birds means those migratory birds included in the terms of conventions between the United States and any foreign country for the protection of migratory birds, for which open seasons are prescribed in this part and belong to the following families:


(1) Anatidae (ducks, geese [including brant] and swans);


(2) Columbidae (doves and pigeons);


(3) Gruidae (cranes);


(4) Rallidae (rails, coots and gallinules); and


(5) Scolopacidae (woodcock and snipe).


A list of migratory birds protected by the international conventions and the Migratory Bird Treaty Act appears in § 10.13 of this subchapter.


(b) Seasons – (1) Open season means the days on which migratory game birds may lawfully be taken. Each period precribed as an open season shall be construed to include the first and last days thereof.


(2) Closed season means the days on which migratory game birds shall not be taken.


(c) Bag limits – (1) Aggregate bag limit means a condition of taking in which two or more usually similar species may be bagged (reduced to possession) by the hunter in predetermined or unpredetermined quantities to satisfy a maximum take limit.


(2) Daily bag limit means the maximum number of migratory game birds of single species or combination (aggregate) of species permitted to be taken by one person in any one day during the open season in any one specified geographic area for which a daily bag limit is prescribed.


(3) Aggregate daily bag limit means the maximum number of migratory game birds permitted to be taken by one person in any one day during the open season when such person hunts in more than one specified geographic area and/or for more than one species for which a combined daily bag limit is prescribed. The aggregate daily bag limit is equal to, but shall not exceed, the largest daily bag limit prescribed for any one species or for any one specified geographic area in which taking occurs.


(4) Possession limit means the maximum number of migratory game birds of a single species or a combination of species permitted to be possessed by any one person when lawfully taken in the United States in any one specified geographic area for which a possession limit is prescribed.


(5) Aggregate possession limit means the maximum number of migratory game birds of a single species or combination of species taken in the United States permitted to be possessed by any one person when taking and possession occurs in more than one specified geographic area for which a possession limit is prescribed. The aggegate possession limit is equal to, but shall not exceed, the largest possession limit prescribed for any one of the species or specified geographic areas in which taking and possession occurs.


(d) Personal abode means one’s principal or ordinary home or dwelling place, as distinguished from one’s temporary or transient place of abode or dwelling such as a hunting club, or any club house, cabin, tent or trailer house used as a hunting club, or any hotel, motel or rooming house used during a hunting, pleasure or business trip.


(e) Migratory bird preservation facility means:


(1) Any person who, at their residence or place of business and for hire or other consideration; or


(2) Any taxidermist, cold-storage facility or locker plant which, for hire or other consideration; or


(3) Any hunting club which, in the normal course of operations; receives, possesses, or has in custody any migratory game birds belonging to another person for purposes of picking, cleaning, freezing, processing, storage or shipment.


(f) Paraplegic means an individual afflicted with paralysis of the lower half of the body with involvement of both legs, usually due to disease of or injury to the spinal cord.


(g) Normal agricultural planting, harvesting, or post-harvest manipulation means a planting or harvesting undertaken for the purpose of producing and gathering a crop, or manipulation after such harvest and removal of grain, that is conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.


(h) Normal agricultural operation means a normal agricultural planting, harvesting, post-harvest manipulation, or agricultural practice, that is conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.


(i) Normal soil stabilization practice means a planting for agricultural soil erosion control or post-mining land reclamation conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture for agricultural soil erosion control.


(j) Baited area means any area on which salt, grain, or other feed has been placed, exposed, deposited, distributed, or scattered, if that salt, grain, or other feed could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them. Any such area will remain a baited area for ten days following the complete removal of all such salt, grain, or other feed.


(k) Baiting means the direct or indirect placing, exposing, depositing, distributing, or scattering of salt, grain, or other feed that could serve as a lure or attraction for migratory game birds to, on, or over any areas where hunters are attempting to take them.


(l) Manipulation means the alteration of natural vegetation or agricultural crops by activities that include but are not limited to mowing, shredding, discing, rolling, chopping, trampling, flattening, burning, or herbicide treatments. The term manipulation does not include the distributing or scattering of grain, seed, or other feed after removal from or storage on the field where grown.


(m) Rice ratooning means the agricultural practice of harvesting rice by cutting the majority of the aboveground portion of the rice plant but leaving the roots and growing shoot apices intact to allow the plant to recover and produce a second crop yield.


(n) Post-disaster flooding means the destruction of a crop through flooding in accordance with practices required by the Federal Crop Insurance Corporation for agricultural producers to obtain crop insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.) on land on which a crop was not harvestable due to a natural disaster (including any hurricane, storm, tornado, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, drought, fire, snowstorm, or other catastrophe that is declared a major disaster by the President in accordance with section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)) in the crop year –


(1) In which the natural disaster occurred; or


(2) Immediately preceding the crop year in which the natural disaster occurred.


(o) Natural vegetation means any non-agricultural, native, or naturalized plant species that grows at a site in response to planting or from existing seeds or other propagules. The term natural vegetation does not include planted millet. However, planted millet that grows on its own in subsequent years after the year of planting is considered natural vegetation.


(p) Resident Canada geese means Canada geese that nest within the lower 48 States and the District of Columbia or that reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August.


[53 FR 24290, June 28, 1988, as amended at 64 FR 29804, June 3, 1999; 71 FR 45986, Aug. 10, 2006; 72 FR 46407, Aug. 20, 2007; 84 FR 28773, June 20, 2019; 84 FR 38885, Aug. 8, 2019]


Subpart C – Taking

§ 20.20 Migratory Bird Harvest Information Program.

(a) Information collection requirements. The collections of information contained in § 20.20 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1018-0015. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The information will be used to provide a sampling frame for the national Migratory Bird Harvest Survey. Response is required from licensed hunters to obtain the benefit of hunting migratory game birds. Public reporting burden for this information is estimated to average 2 minutes per response for 3,300,000 respondents, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus the total annual reporting and record-keeping burden for this collection is estimated to be 112,000 hours. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


(b) General provisions. Each person hunting migratory game birds in any State except Hawaii must have identified himself or herself as a migratory bird hunter and given his or her name, address, and date of birth to the respective State hunting licensing authority and must have on his or her person evidence, provided by that State, of compliance with this requirement.


(c) Tribal exemptions. Nothing in paragraph (b) of this section shall apply to tribal members on Federal Indian Reservations or to tribal members hunting on ceded lands.


(d) State exemptions. Nothing in paragraph (b) of this section shall apply to those hunters who are exempt from State-licensing requirements in the State in which they are hunting.


(e) State responsibilities. The State hunting licensing authority will ask each licensed migratory bird hunter in the respective State to report approximately how many ducks, geese, doves, and woodcock he or she bagged the previous year, whether he or she hunted coots, snipe, rails, and/or gallinules the previous year, and, in States that have band-tailed pigeon hunting seasons, whether he or she intends to hunt band-tailed pigeons during the current year.


[58 FR 15098, Mar. 19, 1993, as amended at 59 FR 53336, Oct. 21, 1994; 61 FR 46352, Aug. 30, 1996; 62 FR 45708, Aug. 28, 1997; 63 FR 46401, Sept. 1, 1998; 79 FR 43965, July 29, 2014]


§ 20.21 What hunting methods are illegal?

Migratory birds on which open seasons are prescribed in this part may be taken by any method except those prohibited in this section. No persons shall take migratory game birds:


(a) With a trap, snare, net, rifle, pistol, swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machinegun, fish hook, poison, drug, explosive, or stupefying substance;


(b) With a shotgun of any description capable of holding more than three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the gun, so its total capacity does not exceed three shells. However, this restriction does not apply during:


(1) A light-goose-only season (greater and lesser snow geese and Ross’ geese) when all other waterfowl and crane hunting seasons, excluding falconry, are closed.


(2) A Canada goose only season when all other waterfowl and crane hunting seasons, excluding falconry, are closed in the Atlantic, Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming, as set forth below:


(i) During the period of September 1 to September 15, when approved in the annual regulatory schedule in subpart K of this part; and


(ii) During the period of September 16 to September 30, when approved in the annual regulatory schedule in subpart K of this part.


(c) From or by means, aid, or use of a sinkbox or any other type of low floating device, having a depression affording the hunter a means of concealment beneath the surface of the water;


(d) From or by means, aid, or use of any motor vehicle, motor-driven land conveyance, or aircraft of any kind, except that paraplegics and persons missing one or both legs may take from any stationary motor vehicle or stationary motor-driven land conveyance;


(e) From or by means of any motorboat or other craft having a motor attached, or any sailboat, unless the motor has been completely shut off and/or the sails furled, and its progress therefrom has ceased: Provided, That a craft under power may be used to retrieve dead or crippled birds; however, crippled birds may not be shot from such craft under power except in the seaduck area as permitted in subpart K of this part;


(f) By the use or aid of live birds as decoys; although not limited to, it shall be a violation of this paragraph for any person to take migratory waterfowl on an area where tame or captive live ducks or geese are present unless such birds are and have been for a period of 10 consecutive days prior to such taking, confined within an enclosure which substantially reduces the audibility of their calls and totally conceals such birds from the sight of wild migratory waterfowl;


(g) By the use or aid of recorded or electrically amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds. However, this restriction does not apply during:


(1) A light-goose-only season (greater and lesser snow geese and Ross’ geese) when all other waterfowl and crane hunting seasons, excluding falconry, are closed.


(2) A Canada goose only season when all other waterfowl and crane hunting seasons, excluding falconry, are closed in the Atlantic, Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming, as set forth below:


(i) During the period of September 1 to September 15, when approved in the annual regulatory schedule in subpart K of this part; and


(ii) During the period of September 16 to September 30, when approved in the annual regulatory schedule in subpart K of this part.


(h) By means or aid of any motordriven land, water, or air conveyance, or any sailboat used for the purpose of or resulting in the concentrating, driving, rallying, or stirring up of any migratory bird;


(i) By the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited. However, nothing in this paragraph prohibits:


(1) the taking of any migratory game bird, including waterfowl, coots, and cranes, on or over the following lands or areas that are not otherwise baited areas –


(i) Standing crops or flooded standing crops (including aquatics); standing, flooded, or manipulated natural vegetation; flooded harvested croplands; or lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting, harvesting, post-harvest manipulation, rice ratooning, post-disaster flooding, or normal soil stabilization practice;


(ii) From a blind or other place of concealment camouflaged with natural vegetation;


(iii) From a blind or other place of concealment camouflaged with vegetation from agricultural crops, as long as such camouflaging does not result in the exposing, depositing, distributing or scattering of grain or other feed; or


(iv) Standing or flooded standing agricultural crops where grain is inadvertently scattered solely as a result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds.


(2) The taking of any migratory game bird, except waterfowl, coots and cranes, on or over lands or areas that are not otherwise baited areas, and where grain or other feed has been distributed or scattered solely as the result of manipulation of an agricultural crop or other feed on the land where grown, or solely as the result of a normal agricultural operation.


(j)(1) While possessing loose shot for muzzle loading or shotshells containing other than the following approved shot types.


Approved shot type*
Percent composition by weight
Field testing device**
Bismuth-tin97 bismuth, and 3 tinHot Shot®***
Iron (steel)iron and carbonMagnet or Hot Shot®.
Iron-tungstenany proportion of tungsten, and ≥1 ironMagnet or Hot Shot®.
Iron-tungsten-nickel≥1 iron, any proportion of tungsten, and up to 40 nickelMagnet or Hot Shot®.
Copper-clad iron84 to 56.59 iron core, with copper cladding up to 44.1 of the shot massMagnet or Hot Shot®
Corrosion-inhibited copper≥99.9 copper with benzotriazole and thermoplastic fluorescent powder coatingsUltraviolet Light.

Tungsten-bronze51.1 tungsten, 44.4 copper, 3.9 tin, and 0.6 iron, or 60 tungsten, 35.1 copper, 3.9 tin, and 1 ironRare Earth Magnet.
Tungsten-iron-copper-nickel40-76 tungsten, 10-37 iron, 9-16 copper, and 5-7 nickelHot Shot® or Rare Earth Magnet.
Tungsten-matrix95.9 tungsten, 4.1 polymerHot Shot®.
Tungsten-polymer95.5 tungsten, 4.5 Nylon 6 or 11Hot Shot®.
Tungsten-tin-ironany proportions of tungsten and tin, and ≥1 ironMagnet or Hot Shot®.
Tungsten-tin-bismuthany proportions of tungsten, tin, and bismuthRare Earth Magnet.
Tungsten-tin-iron-nickel65 tungsten, 21.8 tin, 10.4 iron, and 2.8 nickelMagnet.
Tungsten-iron-polymer41.5-95.2 tungsten, 1.5-52.0 iron, and 3.5-8.0 fluoropolymerRare Earth Magnet or Hot Shot®.

* Coatings of copper, nickel, tin, zinc, zinc chloride, zinc chrome, fluoropolymers, and fluorescent thermoplastic on approved nontoxic shot types also are approved.

** The information in the “Field Testing Device” column is strictly informational, not regulatory.

*** The “HOT*SHOT” field testing device is from Stream Systems of Concord, CA.


(2) Each approved shot type must contain less than 1 percent residual lead (see § 20.134).


(3) This shot type restriction applies to the taking of ducks, geese (including brant), swans, coots (Fulica americana), and any other species that make up aggregate bag limits with these migratory game birds during concurrent seasons in areas described in § 20.108 as nontoxic shot zones.


[38 FR 22021, Aug. 15, 1973, as amended at 38 FR 22896, Aug. 27, 1973; 44 FR 2599, Jan. 12, 1979; 45 FR 70275, Oct. 23, 1980; 49 FR 4079, Feb. 2, 1984; 52 FR 27364, July 21, 1987; 53 FR 24290, June 28, 1988; 60 FR 64, Jan. 3, 1995; 60 FR 43316, Aug. 18, 1995; 61 FR 42494, Aug. 15, 1996; 62 FR 43447, Aug. 13, 1997; 64 FR 29804, June 3, 1999; 64 FR 32780, June 17, 1999; 64 FR 45405, Aug. 19, 1999; 64 FR 71237, Dec. 20, 1999; 65 FR 53940, Sept. 6, 2000; 66 FR 742, Jan. 4, 2001; 66 FR 32265, June 14, 2001; 68 FR 1392, Jan. 10, 2003; 69 FR 48165, Aug. 9, 2004; 70 FR 49196, Aug. 23, 2005; 71 FR 4297, Jan. 26, 2006; 71 FR 45986, Aug. 10, 2006; 72 FR 46407, Aug. 20, 2007; 73 FR 65277, Nov. 3, 2008; 73 FR 70914, Nov. 24, 2008; 74 FR 53671, Oct. 20, 2009; 74 FR 57615, Nov. 9, 2009; 78 FR 65575, Nov. 1, 2013; 82 FR 51362, Nov. 6, 2017; 84 FR 38885, Aug. 8, 2019]


§ 20.22 Closed seasons.

No person shall take migratory game birds during the closed season except as provided in part 21 of this chapter.


[73 FR 65951, Nov. 5, 2008]


§ 20.23 Shooting hours.

No person shall take migratory game birds except during the hours open to shooting as prescribed in subpart K of this part and subpart E of part 21 of this chapter.


[73 FR 65951, Nov. 5, 2008]


§ 20.24 Daily limit.

No person shall take in any 1 calendar day, more than the daily bag limit or aggregate daily bag limit, whichever applies.


[38 FR 22021, Aug. 15, 1973, as amended at 38 FR 22626, Aug. 23, 1973]


§ 20.25 Wanton waste of migratory game birds.

No person shall kill or cripple any migratory game bird pursuant to this part without making a reasonable effort to retrieve the bird, and retain it in his actual custody, at the place where taken or between that place and either (a) his automobile or principal means of land transportation; or (b) his personal abode or temporary or transient place of lodging; or (c) a migratory bird preservation facility; or (d) a post office; or (e) a common carrier facility.


[41 FR 31536, July 29, 1976]


§ 20.26 Emergency closures.

(a) The Director may close or temporarily suspend any season established under subpart K of this part:


(1) Upon a finding that a continuation of such a season would constitute an imminent threat to the safety of any endangered or threatened species or other migratory bird populations.


(2) Upon issuance of local public notice by such means as publication in local newspapers of general circulation, posting of the areas affected, notifying the State wildlife conservation agency, and announcement on local radio and television.


(b) Any such closure or temporary suspension shall be announced by publication of a notice to that effect in the Federal Register simultaneous with the local public notice referred to in paragraph (a)(2) of this section. However, in the event that it is impractical to publish a Federal Register notice simultaneously, due to the restriction in time available and the nature of the particular emergency situation, such notice shall follow the steps outlined in paragraph (a) of this section as soon as possible.


(c) Any closure or temporary suspension under this section shall be effective on the date of publication of the Federal Register notice; or if such notice is not published simultaneously, then on the date and at the time specified in the local notification to the public. Every notice of closure shall include the date and time of closing of the season and the area or areas affected. In the case of a temporary suspension, the date and time when the season may be resumed shall be provided by a subsequent local notification to the public, and by publication in the Federal Register.


[41 FR 31536, July 29, 1976]


Subpart D – Possession

§ 20.31 Prohibited if taken in violation of subpart C.

No person shall at any time, by any means, or in any manner, possess or have in custody any migratory game bird or part thereof, taken in violation of any provision of subpart C of this part.


§ 20.32 During closed season.

No person shall possess any freshly killed migratory game birds during the closed season.


§ 20.33 Possession limit.

No person shall possess more migratory game birds taken in the United States than the possession limit or the aggregate possession limit, whichever applies.


§ 20.34 Opening day of a season.

No person on the opening day of the season shall possess any freshly killed migratory game birds in excess of the daily bag limit, or aggregate daily bag limit, whichever applies.


§ 20.35 Field possession limit.

No person shall possess, have in custody, or transport more than the daily bag limit or aggregate daily bag limit, whichever applies, of migratory game birds, tagged or not tagged, at or between the place where taken and either (a) his automobile or principal means of land transportation; or (b) his personal abode or temporary or transient place of lodging; or (c) a migratory bird preservation facility; or (d) a post office; or (e) a common carrier facility.


[41 FR 31536, July 29, 1976]


§ 20.36 Tagging requirement.

No person shall put or leave any migratory game birds at any place (other than at his personal abode), or in the custody of another person for picking, cleaning, processing, shipping, transportation, or storage (including temporary storage), or for the purpose of having taxidermy services performed, unless such birds have a tag attached, signed by the hunter, stating his address, the total number and species of birds, and the date such birds were killed. Migratory game birds being transported in any vehicle as the personal baggage of the possessor shall not be considered as being in storage or temporary storage.


§ 20.37 Custody of birds of another.

No person shall receive or have in custody any migratory game birds belonging to another person unless such birds are tagged as required by § 20.36.


§ 20.38 Possession of live birds.

Every migratory game bird wounded by hunting and reduced to possession by the hunter shall be immediately killed and become a part of the daily bag limit. No person shall at any time, or by any means, possess or transport live migratory game birds taken under authority of this part.


§ 20.39 Termination of possession.

Subject to all other requirements of this part, the possession of birds taken by any hunter shall be deemed to have ceased when such birds have been delivered by him to another person as a gift; or have been delivered by him to a post office, a common carrier, or a migratory bird preservation facility and consigned for transport by the Postal Service or a common carrier to some person other than the hunter.


[41 FR 31537, July 29, 1976]


§ 20.40 Gift of migratory game birds.

No person may receive, possess, or give to another, any freshly killed migratory game birds as a gift, except at the personal abodes of the donor or donee, unless such birds have a tag attached, signed by the hunter who took the birds, stating such hunter’s address, the total number and species of birds and the date such birds were taken.


[42 FR 39668, Aug. 5, 1977]


Subpart E – Transportation Within the United States

§ 20.41 Prohibited if taken in violation of subpart C.

No person shall at any time, by any means, or in any manner, transport any migratory game bird or part thereof, taken in violation of any provision of subpart C of this part.


§ 20.42 Transportation of birds of another.

No person shall transport migratory game birds belonging to another person unless such birds are tagged as required by § 20.36.


§ 20.43 Species identification requirement.

No person shall transport within the United States any migratory game birds, except doves and band-tailed pigeons (Columba fasciata), unless the head or one fully feathered wing remains attached to each such bird at all times while being transported from the place where taken until they have arrived at the personal abode of the possessor or a migratory bird preservation facility.


[41 FR 31537, July 19, 1976]


§ 20.44 Marking package or container.

No person shall transport by the Postal Service or a common carrier migratory game birds unless the package or container in which such birds are transported has the name and address of the shipper and the consignee and an accurate statement of the numbers of each species of birds therein contained clearly and conspicuously marked on the outside thereof.


Subpart F – Exportation

§ 20.51 Prohibited if taken in violation of subpart C.

No person shall at any time, by any means, or in any manner, export or cause to be exported, any migratory game bird or part thereof, taken in violation of any provision of subpart C of this part.


§ 20.52 Species identification requirement.

No person shall export migratory game birds unless one fully feathered wing remains attached to each such bird while being transported from the United States and/or any of its possessions to any foreign country.


§ 20.53 Marking package or container.

No person shall export migratory game birds via the Postal Service or a common carrier unless the package or container has the name and address of the shipper and the consignee and an accurate statement of the numbers of each species of birds therein contained clearly and conspicuously marked on the outside thereof.


Subpart G – Importations

§ 20.61 Importation limits.

No person shall import migratory game birds in excess of the following importation limits:


(a) Doves and pigeons. (1) From any foreign country except Mexico, during any one calendar week beginning on Sunday, not to exceed 25 doves, singly or in the aggregate of all species, and 10 pigeons, singly or in the aggregate of all species.


(2) From Mexico, not to exceed the maximum number permitted by Mexican authorities to be taken in any one day: Provided, That if the importer has his Mexican hunting permit date-stamped by appropriate Mexican wildlife authorities on the first day he hunts in Mexico, he may import the applicable Mexican possession limit corresponding to the days actually hunted during that particular trip.


(b) Waterfowl. (1) From any foreign country except Canada and Mexico, during any one calendar week beginning on Sunday, not to exceed 10 ducks, singly or in the aggregate of all species, and five geese including brant, singly or in the aggregate of all species.


(2) From Canada, not to exceed the maximum number permitted to be exported by Canadian authorities.


(3) From Mexico, not to exceed the maximum number permitted by Mexican authorities to be taken in any one day: Provided, That if the importer has his Mexican hunting permit date-stamped by appropriate Mexican wildlife authorities on the first day he hunts in Mexico, he may import the applicable Mexican possession limit corresponding to the days actually hunted during that particular trip.


[40 FR 36346, Aug. 20, 1975]


§ 20.62 Importation of birds of another.

No person shall import migratory game birds belonging to another person.


§ 20.63 Species identification requirement.

No person shall import migratory game birds unless each such bird has one fully feathered wing attached, and such wing must remain attached while being transported between the port of entry and the personal abode of the possessor or between the port of entry and a migratory bird preservation facility.


[41 FR 31537, July 19, 1976]


§ 20.64 Foreign export permits.

No person shall import, possess or transport, any migratory game birds killed in a foreign country unless such birds are accompanied by export permits, tags, or other documentation required by applicable foreign laws or regulations.


§ 20.65 Processing requirement.

No person shall import migratory game birds killed in any foreign country, except Canada, unless such birds are dressed (except as required in § 20.63), drawn, and the head and feet are removed: Provided, That this shall not prohibit the importation of legally taken, fully feathered migratory game birds consigned for mounting purposes to a taxidermist who holds a current taxidermist permit issued to him pursuant to § 21.24 of this chapter and who is also licensed by the U.S. Department of Agriculture to decontaminate such birds.


§ 20.66 Marking of package or container.

No person shall import migratory game birds via the Postal Service or a common carrier unless the package or container has the name and address of the shipper and the consignee and an accurate statement of the numbers of each species of birds therein contained clearly and conspicuously marked on the outside thereof.


Subpart H – Federal, State, and Foreign Law

§ 20.71 Violation of Federal law.

No person shall at any time, by any means or in any manner, take, possess, transport, or export any migratory bird, or any part, nest, or egg of any such bird, in violation of any act of Congress or any regulation issued pursuant thereto.


§ 20.72 Violation of State law.

No person shall at any time, by any means or in any manner, take, possess, transport, or export any migratory bird, or any part, nest, or egg of any such bird, in violation of any applicable law or regulation of any State.


§ 20.73 Violation of foreign law.

No person shall at any time, by any means, or in any manner, import, possess, or transport, any migratory bird, or any part, nest, or egg of any such bird taken, bought, sold, transported, possessed, or exported contrary to any applicable law or regulation of any foreign country, or State or province thereof.


Subpart I – Migratory Bird Preservation Facilities

§ 20.81 Tagging requirement.

No migratory bird preservation facility shall receive or have in custody any migratory game birds unless such birds are tagged as required by § 20.36.


[41 FR 31537, July 29, 1976]


§ 20.82 Records required.

(a) No migratory bird preservation facility shall:


(1) Receive or have in custody any migratory game bird unless accurate records are maintained which can identify each bird received by, or in the custody of, the facility by the name of the person from whom the bird was obtained, and show (i) the number of each species; (ii) the location where taken; (iii) the date such birds were received; (iv) the name and address of the person from whom such birds were received; (v) the date such birds were disposed of; and (vi) the name and address of the person to whom such birds were delivered, or


(2) Destroy any records required to be maintained under this section for a period of 1 year following the last entry on the record.


(b) Record keeping as required by this section will not be necessary at hunting clubs which do not fully process migratory birds by removal of both the head and wings.


[41 FR 38510, Sept. 10, 1976]


§ 20.83 Inspection of premises.

No migratory bird preservation facility shall prevent any person authorized to enforce this part from entering such facilities at all reasonable hours and inspecting the records and the premises where such operations are being carried.


[41 FR 31537, July 19, 1976]


Subpart J – Feathers or Skins

§ 20.91 Commercial use of feathers.

Any person may possess, purchase, sell, barter, or transport for the making of fishing flies, bed pillows, and mattresses, and for similar commercial uses the feathers of migratory waterfowl (ducks, geese, brant, and swans) killed by hunting pursuant to this part, or seized and condemned by Federal or State game authorities, except that:


(a) No person shall purchase, sell, barter, or offer to purchase, sell, or barter for millinery or ornamental use the feathers of migratory game birds taken under authority of this part; and


(b) No person shall purchase, sell, barter, or offer to purchase, sell, or barter mounted specimens of migratory game birds taken under authority of this part.


[38 FR 22021, Aug. 15, 1973, as amended at 45 FR 70275, Oct. 23, 1980]


§ 20.92 Personal use of feathers or skins.

Any person for his own use may possess, transport, ship, import, and export without a permit the feathers and skins of lawfully taken migratory game birds.


Subpart K – Annual Seasons, Limits, and Shooting Hours Schedules

§ 20.100 General provisions.

(a) The taking, possession, transportation, and other uses of migratory game birds by hunters is generally prohibited unless it is specifically provided for under regulations developed in accordance with the Migratory Bird Treaty Act. Consequently, hunting is prohibited unless regulatory schedules are established for seasons, daily bag and possession limits, and shooting (or hawking) hours. Migratory game bird population levels, including production and habitat conditions, vary annually. These conditions differ over North America, and within the United States, by flyways, States, and frequently areas within States. Thus, it is necessary to make annual adjustments in the schedules to limit the harvests of migratory game birds to permissible levels.


(b) The development of these schedules involves annual data gathering programs to determine migratory game bird population status and trends, evaluations of habitat conditions, harvest information, and other factors having a bearing on the anticipated size of the fall flights of these birds. The proposed hunting schedules are announced early in the spring, and following consideration of additional information as it becomes available, as well as public comment, they are modified and published as supplemental proposals. These are also open to public comment. Public hearings are held for the purpose of providing additional opportunity for public participation in the rulemaking process.


[44 FR 7147, Feb. 6, 1979]


§ 20.101 Seasons, limits and shooting hours for Puerto Rico and the Virgin Islands.

This section provides for the annual hunting of certain doves, pigeons, ducks, coots, gallinules and snipe in Puerto Rico; and for certain doves, pigeons and ducks in the Virgin Islands. In these Commonwealths, the hunting of waterfowl and coots (and other certain species, as applicable) must be with the use of nontoxic shot beginning in the 1991-92 waterfowl season.


[53 FR 24290, June 28, 1988]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.102 Seasons, limits, and shooting hours for Alaska.

This section provides for the annual hunting of certain waterfowl (ducks, tundra swans, geese, and brant), common snipe, and sandhill cranes in Alaska. In Alaska, the hunting of waterfowl must be with the use of nontoxic shot beginning in the 1991-92 waterfowl season.


[55 FR 35267, Aug. 28, 1990]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.103 Seasons, limits, and shooting hours for mourning and white-winged doves and wild pigeons.

This section provides for the annual hunting of certain doves and pigeons in the 48 contiguous United States. The mourning dove hunting regulations are arranged by the Eastern, Central, and Western Management Units.


[44 FR 7147, Feb. 6, 1979]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.104 Seasons, limits, and shooting hours for rails, woodcock, and common (Wilson’s) snipe.

This section provides for the annual hunting of certain rails, woodcock, and snipe in the 48 contiguous United States.


[44 FR 7148, Feb. 6, 1979]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.105 Seasons, limits and shooting hours for waterfowl, coots, and gallinules.

This section provides for the annual hunting of certain waterfowl (ducks, geese [including brant]), coots and gallinules in the 48 contiguous United States. The regulations are arranged by the Atlantic, Mississippi, Central and Pacific Flyways. These regulations often vary within Flyways or States, and by time periods. Those areas of the United States outside of State boundaries, i.e., the United States’ territorial waters seaward of county boundaries, and including coastal waters claimed by the separate States, if not already included under the zones contained in § 20.108, are designated for the purposes of § 20.21(j) as nontoxic shot zones for waterfowl hunting beginning in the 1991-92 season.


[53 FR 24290, June 28, 1988, as amended at 56 FR 22102, May 13, 1991]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.106 Seasons, limits, and shooting hours for sandhill cranes.

This section provides for the annual hunting of sandhill cranes in designated portions of the 48 contiguous United States.


[55 FR 35267, Aug. 28, 1990]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.107 Seasons, limits, and shooting hours for tundra swans.

This section provides for the annual hunting of tundra swans in designated portions of the 48 contiguous United States.


[55 FR 39829, Sept. 28, 1990]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.108 Nontoxic shot zones.

Beginning September 1, 1991, the contiguous 48 United States, and the States of Alaska and Hawaii, the Territories of Puerto Rico and the Virgin Islands, and the territorial waters of the United States, are designated for the purpose of § 20.21(j) as nontoxic shot zones for hunting waterfowl, coots and certain other species. “Certain other species” refers to those species, other than waterfowl or coots, that are affected by reason of being included in aggregate bags and concurrent seasons.


[56 FR 22102, May 13, 1991]


§ 20.109 Extended seasons, limits, and hours for taking migratory game birds by falconry.

This section provides annual regulations by which falconers may take permitted migratory game birds.


[44 FR 7148, Feb. 6, 1979]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 20.110 Seasons, limits, and other regulations for certain Federal Indian reservations, Indian Territory, and ceded lands.

This section provides for establishing annual migratory bird hunting regulations for certain tribes on Federal Indian reservations, Indian Territory, and ceded lands.


[50 FR 35764, Sept. 3, 1985]


Editorial Note:For Federal Register citations affecting annual regulatory schedules for this section, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

Subpart L – Administrative and Miscellaneous Provisions

§ 20.131 Extension of seasons.

Whenever the Secretary shall find that emergency State action to prevent forest fires in any extensive area has resulted in the shortening of the season during which the hunting of any species of migratory game bird is permitted and that compensatory extension or reopening the hunting season for such birds will not result in a diminution of the abundance of birds to any greater extent than that contemplated for the original hunting season, the hunting season for the birds so affected may, subject to all other provisions of this subchapter, be extended or reopened by the Secretary upon request of the chief officer of the agency of the State exercising administration over wildlife resources. The length of the extended or reopened season in no event shall exceed the number of days during which hunting has been so prohibited. The extended or reopened season will be publicly announced.


§ 20.132 Subsistence use in Alaska.

In Alaska, any person may, for subsistence purposes, take, possess, and transport, in any manner, from September 1 through April 1, snowy owls and cormorants for food and their skins for clothing, but birds and their parts may not be sold or offered for sale.


[68 FR 43027, July 21, 2003]


§ 20.133 Hunting regulations for crows.

(a) Crows may be taken, possessed, transported, exported, or imported, only in accordance with such laws or regulations as may be prescribed by a State pursuant to this section.


(b) Except in the State of Hawaii, where no crows shall be taken, States may by statute or regulation prescribe a hunting season for crows. Such State statutes or regulations may set forth the method of taking, the bag and possession limits, the dates and duration of the hunting season, and such other regulations as may be deemed appropriate, subject to the following limitations for each State:


(1) Crows shall not be hunted from aircraft;


(2) The hunting season or seasons on crows shall not exceed a total of 124 days during a calendar year;


(3) Hunting shall not be permitted during the peak crow nesting period within a State; and


(4) Crows may only be taken by firearms, bow and arrow, and falconry.


§ 20.134 Approval of nontoxic shot types and shot coatings.

The U.S. Fish and Wildlife Service conducts a process to approve shot material determined not to impose a significant toxicity danger to migratory birds and other wildlife or their habitats. The regulations in this section set forth the approval process. Upon receipt of an application and supporting data submitted in accordance with this section, the Service will review the application materials together with all other relevant available evidence, including public comment. If the Director concludes that the spent shot material will not present a significant toxicity danger to migratory birds and other wildlife or their habitats, we will add the shot material to the list of approved nontoxic shot materials at 50 CFR 20.21(j).


(a) Information collection approval. The Office of Management and Budget approved the information collection requirements contained in this section under 44 U.S.C. 3501 et seq. and assigned OMB Control No. 1018-0067. We collect this information so that we can conduct a methodical and objective review of a shot type you submit as nontoxic for hunting waterfowl. An agency 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. You may submit comments on this information collection to the Service Information Collection Officer, U.S. Fish and Wildlife Service, 1849 C Street NW., Washington, DC 20240.


(b) Limitations on nontoxic shot type approval. We will not approve as nontoxic any shot type or shot coating with a lead content of 1 percent or more.


(1) Before we will approve any shot type or shot coating as nontoxic, a shotshell loaded with the shot type or coated shot must be demonstrated to be identifiable as not being lead in a portable field testing device for use by enforcement officers.


(2) The testing device can be regular magnets, rare-earth magnets, or the “HOT*SHOT” field-testing device from Stream Systems of Concord, CA. We will consider other field-testing devices that may be readily available to law enforcement officers.


(c) Application submission and review. We use a 3-tier strategy for approval of nontoxic shot types and shot coatings. You must submit any application for approval under this section with supporting documentation in accordance with the following procedures and must include at least the supporting materials and information for Tier 1 in the approval system. If your application is not complete, we will return it to you with an explanation of the additional information we need to initiate review of your submission.


(d) Tier 1 application fee. The fee for consideration of a Tier 1 application is $1,630. Submit the fee, payable to the U.S. Fish and Wildlife Service, with your application.


(e) Tier 1 application. If you wish to submit a shot type or shot coating for consideration as nontoxic for waterfowl hunting, you must provide statements of use, chemical characterization, production variability, volume of use of the candidate material, and a sample of the shot or shot coating.


(1) Provide a statement of how you propose to use the candidate material in creating waterfowl hunting shotshells.


(2) Provide a description of the chemical composition of the material comprising the shot.


(i) Provide the chemical names, Chemical Abstracts Service numbers (consult the American Chemical Society), and structures of the components of the shot.


(ii) Provide a chemical characterization for organics and organometallics for the core and/or coating, including the empirical formula, melting point, molecular weight, solubility, specific gravity, partition coefficients, hydrolysis half-life, leaching rate in water and in soil, degradation half-life, vapor pressure, stability, and other relevant characteristics for each component.


(iii) Provide data on the composition, weight, and sectional density of the shot material.


(iv) Provide data on the thickness, quantity in milligrams (mg) per shot, and chemical composition of any coating on the shot.


(3) Provide documentation that the shot can be readily identified as nontoxic with a standard field shotshell testing device.


(4) Provide a statement of the hardness of the candidate shot type and the method used to determine the hardness.


(5) Provide a statement of the expected variability of shot during production.


(6) Provide an estimate of yearly volume of candidate shot type and/or coated shot expected to be produced for use in hunting migratory birds in the United States.


(7) Provide 5 pounds (approximately 2.18 kilograms (kg)) of the candidate shot type or shot with the proposed coating in size equivalent to U.S. standard size No. 4 of 0.13 inches (approximately 3.3 millimeters (mm)) in diameter.


(i) We or an independent laboratory may analyze the composition of the shot or the shot coating.


(ii) We will reject your application if the composition of the shot or shot coating differs substantially from what you describe in your application.


(f) Toxicological effects. You must provide information on the toxicological effects of the shot or any coating on it.


(1) Provide a summary of the acute and chronic toxicity data of the metals or compounds in the shot or the shot coating, ranking the toxicity of each. Use the following criteria to assess the toxicity of the shot or shot coating. These criteria are based on the estimated median lethal dose of the candidate shot type or shot coating. That is, the statistically derived single dose estimate of the candidate material that can be expected to cause death in 50 percent of the animals tested (LD50).


If the LD50 is
the material is considered
no more than 5 mg/kg,super toxic.
over 5 to 50 mg/kg,extremely toxic.
over 50 to 500 mg/kg,very toxic.
over 500 to 5,000 mg/kg,moderately toxic.
over 5,000 to 15,000 mg/kg,slightly toxic.
over 15,000 mg/kg,nontoxic.

(2) Provide a summary of known acute, chronic, and reproductive toxicological data of the chemicals comprising the shot or shot coating with respect to birds, particularly waterfowl. Include LD50 or LC50 (concentrations in water lethal to 50 percent of test populations) data, and sublethal effects, with citations.


(3) Provide a narrative description, with citations to relevant data, predicting the toxic effect in waterfowl of complete erosion and absorption of one shot or coated shot in a 24-hour period. Define the nature of the toxic effect, such as mortality, impaired reproduction, substantial weight loss, disorientation, or other relevant associated clinical observations.


(4) Provide a statement with supporting rationale and citations to relevant data about whether ingestion of the shot or shot coating by invertebrates, fish, amphibians, reptiles, or mammals is cause for concern. If there is a recognized impact on invertebrates, fish, amphibians, reptiles, or mammals, we reserve the right to require additional study of the shot or shot coating.


(g) Environmental fate and transport. You must provide information on the environmental fate and transport, if any, of the shot and any coating on it.


(1) Provide a statement describing any chemical or physical alteration of the shot and shot coating upon firing.


(2) Provide an estimate of the environmental half-life of the organic or organometallic components of the shot and shot coating, and a description of the chemical form of the breakdown products of the component(s).


(3) For each metal or other component of the shot or shot coating, determine the Estimated Environmental Concentration (EEC).


(i) Determine the EEC in a terrestrial ecosystem if 69,000 U.S. standard size No. 4 shot of 0.13 in (3.3 mm) in diameter are completely dissolved in 1 hectare (ha) (107,639 square feet (ft
2)) of soil 5 centimeters (cm) (1.97 in) deep. Assess whether the EEC would exceed the clean soil standards for the Use or Disposal of Sewage Sludge at 40 CFR part 503. Explain how the estimated EEC relates to the toxicity thresholds for plants, invertebrates, and other wildlife.


(ii) Determine the EEC in an aquatic ecosystem if 69,000 U.S. standard size No. 4 shot of 0.13 in (3.3 mm) in diameter are completely dissolved in 1 ha, or 107,639 ft
2, of water 1 ft (30.48 cm) deep. Express the calculated concentrations in standard units such as micrograms per liter, for water with pH of 6.5 to 9.0. Explain how the estimated EEC compares to the U.S. Environmental Protection Agency (EPA) Water Quality Criteria and toxicity thresholds in plants, invertebrates, fish, and wildlife.


(4) Conduct a risk assessment using the Quotient Method. Calculate the risk of the submitted shot material, the EEC/the Toxicological Level of Concern. For example, compare the EEC in parts per million (p/m) to an effect level such as the LD50 in p/m. Use the following criteria to assess the risk of the components of the shot or shot coating.


If the risk ratio is
then
less than 0.1,adverse effects are not likely.
0.1 to 10.0,adverse effects are possible.
greater than 10.0,adverse effects are likely.

(h) In vitro evaluation. You must evaluate the candidate shot type or shot coating in a standardized test under conditions that will assess its erosion and any release of components into a liquid medium in an environment simulating the conditions of a waterfowl gizzard (see W.H. Kimball and Z.A. Munir, 1971, The corrosion of lead shot in a simulated waterfowl gizzard, Journal of Wildlife Management 35:360-365) for basic test procedures. Compare the erosion characteristics to those of lead shot and steel shot of comparable size.


(1) Test materials. You will need appropriate analysis equipment, such as for atomic absorption spectrophotometry or inductively coupled plasma mass spectrometry, a drilled aluminum block to support test tubes, a thermostatically controlled stirring hot plate, small Teflon®-coated magnets, hydrochloric acid of pH 2.0, pepsin, capped test tubes, and U.S. No. 4 lead, steel, and candidate shot type or shot with the proposed coating.


(2) Test procedures.


(i) Add hydrochloric acid and pepsin to each capped test tube at a volume and concentration that will erode a single U.S. No. 4 lead shot at the rate of 5 mg per day.


(ii) Place three test tubes, each containing lead shot, steel shot, or the candidate shot type or shot with the proposed coating in an aluminum block on the stirring hot plate. Add a Teflon®-coated magnet to each test tube and set the hot plate at 42 degrees Centigrade and 500 revolutions per minute.


(iii) Determine the erosion of shot or shot with the proposed coating daily for 14 consecutive days by weighing the shot and analyzing the digestion solution with an atomic absorption spectrophotometer.


(iv) Replicate the 14-day procedure five times.


(3) Test analyses. Compare erosion rates of the three types of shot by appropriate analysis of variance and regression procedures. The statistical analyses will determine whether the rate of erosion of the shot and/or shot coating is significantly greater or less than that of lead and/or steel shot. This determination is important to any subsequent toxicity testing.


(i) Tier 1 application review. Upon receipt of your completed Tier 1 application, we will promptly perform an overview. We will notify you within 30 days of receipt that our thorough review of the application will commence, and we will complete our review within 60 days of the date of publication. We will use half of the LD50/ft
2 in terrestrial and aquatic systems as the level of concern in evaluating your application.


(j) Approval after Tier 1 testing. If we determine that the Tier 1 data show that the shot or shot coating does not pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will notify you and request payment of a $20,000 final review and publication fee (payable to the U.S. Fish and Wildlife Service).


(1) After receipt of payment, we will publish a proposed rule in the Federal Register stating that we intend to approve this shot or shot coating as nontoxic and provide the public with the opportunity to comment on our decision. The proposed rule will include a description of the chemical composition of the shot or shot coating and a synopsis of findings under the standards required by Tier 1.


(2) If, after considering public comment on the proposed rule, we conclude that the shot or shot coating does not pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will approve the shot or coating as nontoxic with publication of a final rule in the Federal Register and addition of the shot or coating to the list in § 20.21(j).


(k) Additional testing. If we conclude that the Tier 1 data are inconclusive, or if we conclude that the shot or shot coating may pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will advise you to proceed with some or all of the additional testing described for Tier 2, Tier 3, or both.


(1) We will inform you that we consider the Tier 1 test results to be inconclusive. We will request Tier 2, and possibly Tier 3, testing before we evaluate the shot any further.


(2) If you choose not to do further testing, we will deny approval of the candidate shot type or shot coating.


(l) Tier 2 application fee. The fee for consideration of a Tier 2 application is $1,530. Submit the fee, payable to the U.S. Fish and Wildlife Service, with your application.


(m) Tier 2 testing. Your Tier 2 testing procedures must be in compliance with the Good Laboratory Practice Standards (40 CFR part 160) except where they conflict with the requirements in this section or with a provision of an approved plan. We reserve the right for us or an authorized representative to inspect your laboratory facilities. We will not approve the plan and will cease further consideration of the candidate shot type if the laboratory does not meet the Good Laboratory Practice Standards.


(n) Tier 2 plan review. We will review the Tier 2 testing plan you submit within 30 days of the day on which we receive it. We may decline to approve the plan, or any part of it, if we deem it deficient in any manner with regard to timing, format, or content. We will inform you regarding what parts, if any, of the submitted testing procedures to disregard and any modifications to incorporate into the Tier 2 testing plan to gain plan approval. After we accept your plan, you may conduct Tier 2 testing.


(o) Tier 2 in vivo evaluation. Conduct a 30-day acute toxicity test in mallards using the following method unless we specify otherwise. The testing should be done in accordance with Good Laboratory Practices Standards at 40 CFR part 160.


(1) Test materials. You will need 30 male and 30 female hand-reared mallards approximately 6 to 8 months old with plumage and body conformation of wild mallards; 60 elevated outdoor pens equipped with feeders and waterers; a laboratory equipped to perform fluoroscopy, required blood and tissue assays, and necropsies; commercial duck maintenance mash; and lead, steel, and candidate shot type.


(2) Test procedures.


(i) House the mallards individually in pens and give them unrestricted access to food and water.


(ii) After 3 weeks, randomly assign them to 3 groups of 10 males and 10 females per group. Dose each duck with 8 pellets of either U.S. No. 4 lead shot (positive control), steel shot (negative control), or the candidate shot type or shot with the proposed coating.


(iii) Fluoroscope each bird at 1 week after dosing to check for shot retention.


(iv) For 30 days, observe the birds daily for signs of intoxication and mortality.


(v) Determine the body weight for each bird at the time of dosing and at days 15 and 30.


(vi) On days 15 and 30, collect blood by venipuncture and determine hematocrit, hemoglobin concentration, and other measures of blood chemistry.


(vii) Euthanize all survivors on day 30. Remove the liver and other appropriate organs from each bird and those from birds that died prior to day 30.


(viii) Analyze the organs for lead and compounds contained in the candidate shot type or shot with the proposed coating.


(ix) Perform a necropsy of all birds to determine any gross and/or microscopic pathological conditions.


(x) Weigh all recovered shot and determine shot erosion.


(3) Test analyses.


(i) Analyze mortality among the specified groups with appropriate statistical procedures, such as chi-square, with α = 0.05, and β = 0.8.


(ii) Analyze physiological data and tissue contaminant data by analysis of variance or other appropriate statistical procedures to include the factors of shot type and sex, with α = 0.05 and β = 0.8.


(iii) Compare euthanized birds and birds that died prior to day 30 whenever sample sizes are adequate for meaningful comparison.


(p) Daphnia and fish early-life toxicity tests. Determine the toxicity of the compounds that comprise the shot or shot coating (at conditions maximizing solubility without adversely affecting controls) to selected invertebrates and fish. These methods are subject to the environmental effects test regulations developed under the authority of the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), as follows:


(1) The first test, the Daphnia (Daphnia species) Acute Toxicity Test, must be conducted in accordance with 40 CFR 797.1300. It provides data on the acute toxicity of chemical substances. The guideline prescribes an acute toxicity test in which Daphnia are exposed to a chemical in static and flow-through systems for assessing the hazard the compound(s) may present to an aquatic environment.


(2) The second test, the Daphnia Chronic Toxicity Test, must be conducted in accordance with 40 CFR 797.1330. It provides data on the chronic toxicity of chemical substances in which Daphnia are exposed to a chemical in a renewal or flow-through system. The data from this test also are used to assess the hazard that the compound(s) may present to an aquatic environment.


(3) The third test, the Fish Early-Life-Stage Toxicity Test, must be conducted in accordance with 40 CFR 797.1600. It assesses the adverse effects of chemical substances to fish in the early stages of their growth and development. Data from this test also are used to determine hazards of the compound(s) in an aquatic environment.


(q) Evaluation of Tier 2 testing. If, after Tier 2 testing, you wish to continue the application process, send the Tier 2 testing results and analyses to us. You must ensure that copies of all the raw data and statistical analyses accompany the laboratory reports and final comprehensive report of this test. We will review the data within 60 days of the day on which we receive your Tier 2 application materials.


(r) Approval after Tier 2 testing. If we determine that the Tier 2 test data show that the shot or shot coating does not pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will notify you and request payment of a $20,000 final review and publication fee (payable to the U.S. Fish and Wildlife Service).


(1) After receipt of payment, we will publish a proposed rule in the Federal Register stating that we intend to approve this shot or shot coating and provide the public with the opportunity to comment. The proposed rule will include a description of the chemical composition of the shot or shot coating and a synopsis of findings under the standards required by Tier 2.


(2) If, at the end of the comment period, we conclude that the shot or shot coating does not pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will approve the shot or coating as nontoxic with publication of a final rule in the Federal Register and subsequent addition of the shot or coating to the list in § 20.21(j).


(s) Additional testing. If we conclude that the Tier 2 data are inconclusive, or if we conclude that the shot or shot coating may pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, or if public comment on the proposed rule indicates that we should require further testing, we will advise you to proceed with the additional testing described for Tier 3. We will require Tier 3 testing before we evaluate the shot any further. If you choose not to do Tier 3 testing, we will deny approval of the candidate shot type or shot coating.


(t) Tier 3 application fee. The fee for consideration of a Tier 3 application is $1,530. Submit the fee, payable to the U.S. Fish and Wildlife Service, with your application.


(u) Tier 3 testing. We will review your Tier 3 testing plan within 30 days of the day on which we receive it. All testing procedures in the plan should be in compliance with the Good Laboratory Practice Standards (40 CFR part 160), except where they conflict with the requirements in this section or with a provision of an approved plan. We, or our authorized representative, may elect to inspect your laboratory facilities and may decline to approve the plan and further consideration of the candidate shot type and/or shot coating if the facility is not in compliance with the Good Laboratory Practice Standards.


(1) We will not approve the plan, or any part of it, if we deem it deficient in any manner with regard to timing, format, or content. We will tell you what parts, if any, of the submitted testing procedure to disregard, and any modifications to incorporate into the Tier 3 plan needed for us to approve it.


(2) After acceptance of the plan, you may conduct the Tier 3 testing. You must ensure that copies of the raw data and the statistical analyses accompany the laboratory reports and final comprehensive report on this test.


(i) Chronic toxicity test. This is a long-term toxicity test under depressed temperature conditions using a nutritionally deficient diet. Conduct a chronic exposure test under adverse conditions that complies with the following general guidelines unless we tell you otherwise.


(A) Test materials. You will need 36 male and 36 female hand-reared mallards approximately 6 to 8 months old with plumage and body conformation of wild mallards; 72 elevated outdoor pens equipped with feeders and waterers; a laboratory equipped to perform fluoroscopy, required blood and tissue assays, and necropsies; whole kernel corn; and lead, steel, and candidate shot type or shot with the proposed coating.


(B) Test procedures. (1) Conduct this test at a location where the mean monthly low temperature during December through March is between 20 and 40 degrees Fahrenheit (−6.6 and 4.4 degrees Centigrade, respectively).


(2) Assign individual mallards to elevated outdoor pens during the first week of December and give them an unrestricted diet of whole kernel corn for 2 weeks.


(3) Randomly assign birds to five groups – a lead group of 4 males and 4 females, and 4 other groups of 8 males and 8 females per group.


(4) Dose each bird in the lead group (the positive control) with one U.S. No. 4 pellet of lead shot. Dose each bird in one group of 8 males and 8 females with 8 U.S. No. 4 pellets of steel shot (the negative control). Dose each bird in 1 remaining group of 8 males and 8 females with one U.S. No. 4 pellet of the candidate shot type or shot with the proposed coating, each bird in 1 of the remaining 2 groups of 8 males and 8 females with 4 U.S. No. 4 pellets of the candidate shot type or shot with the proposed coating, and each bird in the final group of 8 males and 8 females with 8 U.S. No. 4 pellets of the candidate shot type or shot with the proposed coating.


(5) Weigh and fluoroscope the birds weekly.


(6) Weigh all recovered shot and determine shot erosion.


(7) Determine blood parameters given in the 30-day acute toxicity test. Provide body weight and blood parameter measurements on samples drawn at 24 hours after dosing, and at the end of days 30 and 60.


(8) Remove the liver and other appropriate organs from all birds that die prior to day 60.


(9) At the end of 60 days, euthanize all survivors. Remove the liver and other appropriate organs from the euthanized birds. Analyze the organs for lead and other metals in the candidate shot type or shot coating.


(10) Necropsy all birds that died prior to day 60 to determine any gross and/or microscopic pathological conditions associated with their deaths.


(C) Test analyses. (1) Analyze mortality among the specified groups with appropriate chi-square statistical procedures. Any effects on the previously mentioned physiological parameters caused by the shot or shot coating must be significantly less than those caused by lead shot and must not be significantly greater than those caused by steel shot, with α = 0.05, and β = 0.8.


(2) Analyze physiological data and tissue contaminant data by analysis of variance or appropriate statistical procedures to include the factors of shot type, dose, and sex with α = 0.05, and β = 0.8.


(3) Compare euthanized birds and birds that died prior to being euthanized whenever sample sizes are adequate for a meaningful comparison.


(ii) Chronic dosing study. This moderately long-term study includes an assessment of reproduction. Conduct a chronic exposure reproduction trial within the following general guidelines unless we tell you otherwise.


(A) Test materials. You will need 44 male and 44 female hand-reared first-year mallards with plumage and body conformation of wild mallards; pens suitable for quarantine and acclimation and for reasonably holding 5 to 10 ducks each; 44 elevated pens equipped with feeders, waterers, and nest boxes; a laboratory equipped to perform fluoroscopy, required blood and tissue assays, and necropsies; whole kernel corn, and commercial duck maintenance and breeder mash; and U.S. No. 4 lead, steel, and candidate shot type or shot with the proposed coating.


(B) Test procedures. (1) In December, randomly assign the mallards to 3 groups – a positive control group of 4 males and 4 females that will be tested with lead; a negative control group of 20 males and 20 females that will be tested with steel; and a final group with 20 males and 20 females that will be tested with the candidate shot type or shot with the proposed coating. Hold the ducks in same-sex groups until mid-January. If the test is not conducted in the northern United States or comparable latitudes, the test must be completed in low-temperature units.


(2) After a 3-week acclimation period in which the ducks are fed with commercial maintenance mash, provide them an unrestricted diet of corn for 60 days and then pair them, put one pair in each pen, and provide them with commercial breeder mash.


(3) After the acclimation period, dose each bird in the lead group with 1 pellet of U.S. No. 4 lead shot, each bird in one of the groups of 20 males and 20 females with 8 pellets of U.S. No. 4 steel shot, and each bird in the remaining group of 20 males and 20 females with 8 pellets of U.S. No. 4 candidate shot type or shot with the proposed coating.


(4) Redose each bird with the appropriate shot after 30, 60, and 90 days. Few, if any, of the lead-dosed birds should survive and reproduce.


(5) Fluoroscope each bird 1 week after dosing it to check for shot retention.


(6) Weigh each bird the day of initial dosing (day 0), at each subsequent dosing, and at death.


(7) Collect a blood sample from each bird on the days on which it is dosed and immediately prior to euthanizing it.


(8) Check nests daily and collect any eggs laid. Note the date of first egg laid and the mean number of days per egg laid. Conclude monitoring of laying after 21 normal, uncracked eggs are laid or after 150 days.


(9) Collect eggs and discard any eggs laid before pairing.


(10) Euthanize the adults after they complete laying or after 150 days.


(11) Remove the liver and other appropriate organs from each euthanized bird and from each bird that dies prior to being euthanized.


(12) Analyze the organs and the eleventh egg for compounds contained in the shot or shot coating.


(13) Necropsy all the birds to determine any gross and/or microscopic pathological conditions that affected them.


(14) Artificially incubate the normal eggs and calculate the percent shell thickness for each (compared to typical shell thickness), the percent of eggs cracked, the percent fertility (as determined by candling), and the percentage of fertile eggs hatched for each female.


(15) Provide ducklings that hatch with starter mash. Euthanize all ducklings at 14 days of age.


(16) Determine survival to day 14 and weight of the ducklings at hatching and at being euthanized.


(17) Measure duckling blood for hemoglobin concentration and other blood chemistries using blood samples drawn when the ducklings are euthanized.


(C) Test analyses. Any mortality, reproductive inhibition, or effects on physiological parameters due to the shot or shot coating must not be significantly greater than those caused by steel shot. If necessary, transform percentage data with an arcsine, square root, or other suitable transformation prior to statistical analyses. Analyze the physiological and reproductive data with one-tailed t-tests or other appropriate statistical procedures with α = 0.05, and β = 0.8.


(v) Evaluation of Tier 3 testing. Report the results of your Tier 3 testing to us. We will review the data within 60 days of the day on which we receive your Tier 3 application materials. You must ensure that copies of the raw data and the statistical analyses accompany the laboratory reports and final comprehensive report on this test.


(w) Approval after Tier 3 testing. If we determine that the Tier 3 test data show that the shot or shot coating does not pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will notify you and request payment of a $20,000 final review and publication fee (payable to the U.S. Fish and Wildlife Service).


(1) After receipt of payment, we will publish a proposed rule in the Federal Register stating that we intend to approve this shot or shot coating and provide the public with the opportunity to comment. The proposed rule will include a description of the chemical composition of the shot or shot coating and a synopsis of findings under the standards required by Tier 3.


(2) If, at the end of the comment period, we conclude that the shot or shot coating does not pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will approve the shot or coating as nontoxic with publication of a final rule in the Federal Register and subsequent addition of the shot or coating to the list in § 20.21(j).


(x) Additional testing after Tier 3. If we conclude that the Tier 3 data are inconclusive, or if we conclude that the shot or shot coating may pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we may ask you to repeat tests we deem inconclusive. If you choose not to repeat the tests, we will deny approval of the candidate shot type or shot coating.


(y) Denial after Tier 3 testing. If we conclude that the shot or shot coating may pose a significant toxicity danger to migratory birds, other wildlife, or their habitats, we will notify you that we deny approval of the candidate shot type or shot coating.


(z) Withdrawal of the approval of a shot type or shot coating. If we find that an approved shot type or shot coating is not readily detectable in the field or has environmental effects or direct toxicological effects on biota, we may withdraw our approval of the shot type or shot coating. This includes any previously approved shot type or shot coating.


(1) We may consult the Service Law Enforcement Laboratory to determine whether any particular shot type or shot coating is readily detectable in the field by law enforcement officers. If the shot type is not readily detectable in the field, we will give the shotshell producer 180 days to remedy the situation by improving either the shot or the detection method.


(2) We may consider new evidence, consistent with the provisions of the Migratory Bird Treaty Act and the Information Quality Act (Pub. L. 106-554, 2001; Office of Management and Budget Guidance, 67 FR 8452-8460, February 22, 2002) that shows that an approved shot type or shot coating has significant environmental effects or direct toxicological effects that were not known when we approved the shot type or shot coating.


(3) After the 180-day period for a shot type that cannot be tested in the field (see paragraph (z)(1) of this section), or at any time after we learn of significant environmental effects or direct toxicological effects, we will publish a notice in the Federal Register informing manufacturers and the public of our pending withdrawal of the approval of the shot type or shot coating. We will revise the table of approved shot types at § 20.21(j) to reflect the withdrawal of the approval, to be effective on January 1st, after allowing manufacturers 1 full calendar year to prepare for the change.


[78 FR 78280, Dec. 26, 2013]


Subpart M [Reserved]

Subpart N – Special Procedures for Issuance of Annual Hunting Regulations


Source:46 FR 62079, Dec. 22, 1981, unless otherwise noted.

§ 20.151 Purpose and scope.

The rules of this subpart N apply to the issuance of the annual regulations establishing seasons, bag limits, and other requirements for the seasonal hunting of migratory birds. The rules of this subpart N do not apply to the issuance of regulations under part 21 of this title or under subparts A through J and L through M of this part 20.


§ 20.152 Definitions.

As used in this subpart N:


(a) Flyway Council means the Atlantic, Mississippi, Central, or Pacific Flyway Council;


(b) Regulations Committee means the Migratory Bird Regulations Committee of the Fish and Wildlife Service; and


(c) Significant, as used in reference to a communication or other form of information or data, means related to the merits of the regulation and received, utilized, or transmitted by an official of the Department who is or may reasonably be expected to be involved in the decisional process on the regulation.


§ 20.153 Regulations committee.

(a) Notice of meetings. Notice of each meeting of the Regulations Committee to be attended by any person outside the Department of the Interior will be published in the Federal Register or online on the U.S. Fish and Wildlife Service’s Migratory Bird Program website at least 2 weeks before the meeting. The notice will state the time, place, and general subject(s) of the meeting, as well as the extent of public involvement.


(b) Public observation and written comment. Each meeting of the Regulations Committee for which notice is published pursuant to paragraph (a) of this section will be open to the public for observation and the submission of written comments.


(c) Public participation. Except for the mid-summer meetings held in Washington, DC, in conjuction with the public hearing on waterfowl and other late season frameworks, the public may participate in any meeting of the Regulations Committee for which notice is published pursuant to paragraph (a) of this section through the submission of oral statements that comply with the rules stated in the notice.


(d) Minutes of meetings. Minutes will be made of each meeting of the Regulations Committee for which notice is published pursuant to paragraph (a) of this section.


[46 FR 62079, Dec. 22, 1981, as amended at 86 FR 37889, July 16, 2021]


§ 20.154 Flyway Councils.

(a) Notice of meetings. Notice of each meeting of a Flyway Council to be attended by any official of the Department of the Interior will be published in the Federal Register or online on the U.S. Fish and Wildlife Service’s Migratory Bird Program website at least 2 weeks before the meeting or as soon as practicable after the Department of the Interior learns of the meeting. The notice will state the time, place, and general subject(s) of the meeting.


(b) [Reserved]


[46 FR 62079, Dec. 22, 1981, as amended at 86 FR 37889, July 16, 2021]


§ 20.155 Public file.

(a) Establishment. A public file will be established for each rulemaking to which this subpart N is applicable.


(b) Contents. Except for information exempt from disclosure under 5 U.S.C. 552, a public file established pursuant to paragraph (a) of this section will contain:


(1) The minutes of Regulations Committee meetings made pursuant to paragraph (d) of § 20.153;


(2) Any written comments and other significant written communications which occur after the notice of proposed rulemaking;


(3) Summaries, identifying the source, of any significant oral communications which occure after the notice of proposed rulemaking; and


(4) Copies of or references to any other significant data or information.


PART 21 – MIGRATORY BIRD PERMITS


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



Source:39 FR 1178, Jan. 4, 1974, unless otherwise noted.

Subpart A – Introduction

§ 21.1 Purpose of regulations.

The regulations contained in this part supplement the general permit regulations of part 13 of this subchapter with respect to permits for the taking, possession, transporation, sale, purchase, barter, importation, exportation, and banding or marking of migratory birds. This part also provides certain exceptions to permit requirements for public, scientific, or educational institutions, and establishes depredation orders which provide limited exceptions to the Migratory Bird Treaty Act (16 U.S.C. 703-712).


[54 FR 38150, Sept. 14, 1989]


§ 21.2 Scope of regulations.

(a) Migratory birds, their parts, nests, or eggs, lawfully acquired prior to the effective date of Federal protection under the Migratory Bird Treaty Act (16 U.S.C. 703-712) may be possessed or transported without a permit, but may not be imported, exported, purchased, sold, bartered, or offered for purchase, sale or barter, and all shipments of such birds must be marked as provided by part 14 of this subchapter: Provide, no exemption from any statute or regulation shall accrue to any offspring of such migratory birds.


(b) This part, except for § 21.12(a), (c), and (d) (general permit exceptions); § 21.22 (banding or marking); § 21.29 (falconry); and § 21.31 (rehabilitation), does not apply to the bald eagle (Haliaeetus leucocephalus) or the golden eagle (Aquila chrysaetos), for which regulations are provided in part 22 of this subchapter.


(c) The provisions of this part are in addition to, and are not in lieu of other regulations of this subchapter B which may require a permit or prescribe additional restrictions or conditions for the importation, exportation, and interstate transportation of wildlife (see also part 13).


[39 FR 1178, Jan. 4, 1974, as amended at 46 FR 42680, Aug. 24, 1981; 68 FR 61137, Oct. 27, 2003; 73 FR 59465, Oct. 8, 2008]


§ 21.3 Definitions.

In addition to definitions contained in part 10 of this chapter, and unless the context requires otherwise, as used in this part:


Armed Forces means the Army, Navy, Air Force, Marine Corps, Coast Guard, and the National Guard of any State.


Bred in captivity or captive-bred refers to raptors, including eggs, hatched in captivity from parents that mated or otherwise transferred gametes in captivity.


Captivity means that a live raptor is held in a controlled environment that is intensively manipulated by man for the purpose of producing raptors of selected species, and that has boundaries designed to prevent raptors, eggs or gametes of the selected species from entering or leaving the controlled environment. General characteristics of captivity may include, but are not limited to, artificial housing, waste removal, health care, protection from predators, and artificially supplied food.


Conservation measures, as used in § 21.15, means project design or mitigation activities that are reasonable from a scientific, technological, and economic standpoint, and are necessary to avoid, minimize, or mitigate the take of migratory birds or other adverse impacts. Conservation measures should be implemented in a reasonable period of time.


Falconry is caring for and training raptors for pursuit of wild game, and hunting wild game with raptors. Falconry includes the taking of raptors from the wild to use in the sport; and caring for, training, and transporting raptors held for falconry.


Hacking is the temporary release of a raptor held for falconry to the wild so that it must survive on its own.


Hybrid means any bird that results from a cross of genetic material between two separate taxa when one or both are listed at 50 CFR 10.13, and any progeny of those birds.


Imprint, for the purposes of falconry, means a bird that is hand-raised, from 2 weeks of age until it has fledged, and has identified itself with humans rather than its own species. An imprinted bird is considered to be so for its entire lifetime.


Livestock depredation area means a specific geographic location in which depredation by golden eagles has been recognized. The boundaries and duration of a livestock depredation area are declared by U.S.D.A. Wildlife Services or by a State governor.


Military readiness activity, as defined in Pub. L. 107-314, § 315(f), 116 Stat. 2458 (Dec. 2, 2002) [Pub. L. § 319 (c)(1)], includes all training and operations of the Armed Forces that relate to combat, and the adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat use. It does not include (a) routine operation of installation operating support functions, such as: administrative offices; military exchanges; commissaries; water treatment facilities; storage facilities; schools; housing; motor pools; laundries; morale, welfare, and recreation activities; shops; and mess halls, (b) operation of industrial activities, or (c) construction or demolition of facilities listed above.


Population, as used in § 21.15, means a group of distinct, coexisting, conspecific individuals, whose breeding site fidelity, migration routes, and wintering areas are temporally and spatially stable, sufficiently distinct geographically (at some time of the year), and adequately described so that the population can be effectively monitored to discern changes in its status.


Raptor means a migratory bird of the Order Accipitriformes, the Order Falconiformes, or the Order Strigiformes listed in § 10.13 of this chapter, including the bald eagle (Haliaeetus leucocephalus) and the golden eagle (Aquila chrysaetos).


Resident Canada geese means Canada geese that nest within the lower 48 States and the District of Columbia or that reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August.


Secretary of Defense means the Secretary of Defense or any other national defense official who has been nominated by the President and confirmed by the Senate.


Service or we means the U.S. Fish and Wildlife Service, Department of the Interior.


Significant adverse effect on a population, as used in § 21.15, means an effect that could, within a reasonable period of time, diminish the capacity of a population of migratory bird species to sustain itself at a biologically viable level. A population is “biologically viable” when its ability to maintain its genetic diversity, to reproduce, and to function effectively in its native ecosystem is not significantly harmed. This effect may be characterized by increased risk to the population from actions that cause direct mortality or a reduction in fecundity. Assessment of impacts should take into account yearly variations and migratory movements of the impacted species. Due to the significant variability in potential military readiness activities and the species that may be impacted, determinations of significant measurable decline will be made on a case-by-case basis.


[48 FR 31607, July 8, 1983, as amended at 64 FR 32774, June 17, 1999; 71 FR 45986, Aug. 10, 2006; 72 FR 8949, Feb. 28, 2007; 72 FR 46408, Aug. 20, 2007; 73 FR 59465, Oct. 8, 2008; 75 FR 931, Jan. 7, 2010; 78 FR 65578, 65864, Nov. 1, 2013; 84 FR 28773, June 20, 2019]


§ 21.4 Information collection requirements.

(a) The Office of Management and Budget approved the information collection requirements contained in this part 21 under 44 U.S.C. 3507 and assigned OMB Control Number 1018-0022. The Service 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. We are collecting this information to provide information necessary to evaluate permit applications. We will use this information to review permit applications and make decisions, according to criteria established in the Migratory Bird Treaty Act, 16 U.S.C. 703-712 and its regulations, on the issuance, suspension, revocation, or denial of permits. You must respond to obtain or retain a permit.


(b) We estimate the public reporting burden for these reporting requirements to vary from 15 minutes to 4 hours per response, with an average of 0.803 hours per response, including time for reviewing instructions, gathering and maintaining data, and completing and reviewing the forms. Direct comments regarding the burden estimate or any other aspect of these reporting requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[63 FR 52637, Oct. 1, 1998, as amended at 79 FR 43965, July 29, 2014]


Subpart B – General Requirements and Exceptions

§ 21.11 General permit requirements.

No person may take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such bird except as may be permitted under the terms of a valid permit issued pursuant to the provisions of this part and part 13 of this chapter, or as permitted by regulations in this part, or part 20 of this subchapter (the hunting regulations), or part 92 of subchapter G of this chapter (the Alaska subsistence harvest regulations). Birds taken or possessed under this part in “included areas” of Alaska as defined in § 92.5(a) are subject to this part and not to part 92 of subchapter G of this chapter.


[68 FR 43027, July 21, 2003]


§ 21.12 General exceptions to permit requirements.

The following persons or entities under the following conditions are exempt from the permit requirements:


(a) Employees of the Department of the Interior (DOI): DOI employees authorized to enforce the provisions of the Migratory Bird Treaty Act of July 3, 1918, as amended (40 Stat. 755; 16 U.S.C. 703-(711), may, without a permit, take or otherwise acquire, hold in custody, transport, and dispose of migratory birds or their parts, nests, or eggs as necessary in performing their official duties.


(b) Employees of certain public and private institutions:


(b)(1) State game departments, municipal game farms or parks, and public museums, public zoological parks, accredited institutional members of the American Association of Zoological Parks and Aquariums (AAZPA) and public scientific or educational institutions may acquire by gift or purchase, possess, transport, and by gift or sale dispose of lawfully acquired migratory birds or their progeny, parts, nests, or eggs without a permit: Provided, That such birds may be acquired only from persons authorized by this paragraph or by a permit issued pursuant to this part to possess and dispose of such birds, or from Federal or State game authorities by the gift of seized, condemned, r sick or injured birds. Any such birds, acquired without a permit, and any progeny therefrom may be disposed of only to persons authorized by this paragraph to acquire such birds without a permit. Any person exercising a privilege granted by this paragraph must keep accurate records of such operations showing the species and number of birds acquired, possessed, and disposed of; the names and addresses of the persons from whom such birds were acquired or to whom such birds were donated or sold; and the dates of such transactions. Records shall be maintained or reproducible in English on a calendar year basis and shall be retained for a period of five (5) years following the end of the calendar year covered by the records.


(b)(2) Employees of Federal, State, and local wildlife and land management agencies; employees of Federal, State, and local public health agencies; and laboratories under contract to such agencies may in the course of official business collect, possess, transport, and dispose of sick or dead migratory birds or their parts for analysis to confirm the presence of infectious disease. Nothing in this paragraph authorizes the take of uninjured or healthy birds without prior authorization from the Service. Additionally, nothing in this paragraph authorizes the taking, collection, or possession of migratory birds when circumstances indicate reasonable probability that death, injury, or disability was caused by factors other than infectious disease and/or natural toxins. These factors may include, but are not limited to, oil or chemical contamination, electrocution, shooting, or pesticides. If the cause of death of a bird is determined to be other than natural causes or disease, Service law enforcement officials must be contacted without delay.


(c) Licensed veterinarians: Licensed veterinarians are not required to obtain a Federal migratory bird permit to temporarily possess, stabilize, or euthanize sick and injured migratory birds. However, a veterinarian without a migratory bird rehabilitation permit must transfer any such bird to a federally permitted migratory bird rehabilitator within 24 hours after the bird’s condition is stabilized, unless the bird is euthanized. If a veterinarian is unable to locate a permitted rehabilitator within that time, the veterinarian must contact his or her Regional Migratory Bird Permit Office for assistance in locating a permitted migratory bird rehabilitator and/or to obtain authorization to continue to hold the bird. In addition, veterinarians must:


(1) Notify the local U.S. Fish and Wildlife Service Ecological Services Office immediately upon receiving a threatened or endangered migratory bird species. Contact information for Ecological Services offices can be located on the Internet at http://offices.fws.gov;


(2) Euthanize migratory birds as required by § 21.31(e)(4)(iii) and § 21.31(e)(4)(iv), and dispose of dead migratory birds in accordance with § 21.31(e)(4)(vi); and


(3) Keep records for 5 years of all migratory birds that die while in their care, including those they euthanize. The records must include: the species of bird, the type of injury, the date of acquisition, the date of death, and whether the bird was euthanized.


(d) General public: Any person may remove a migratory bird from the interior of a building or structure under certain conditions.


(1) You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird:


(i) Poses a health threat (for example, through damage to foodstuffs);


(ii) Is attacking humans, or poses a threat to human safety because of its activities (such as opening and closing automatic doors);


(iii) Poses a threat to commercial interests, such as through damage to products for sale; or


(iv) May injure itself because it is trapped.


(2) You must use a humane method to capture the bird or birds. You may not use adhesive traps to which birds may adhere (such as glue traps) or any other method of capture likely to harm the bird.


(3) Unless you have a permit that allows you to conduct abatement activities with a raptor, you may not release a raptor into a building to either frighten or capture another bird.


(4) You must immediately release a captured bird to the wild in habitat suitable for the species, unless it is exhausted, ill, injured, or orphaned.


(5) If a bird is exhausted or ill, or is injured or orphaned during the removal, the property owner is responsible for immediately transferring it to a federally permitted migratory bird rehabilitator.


(6) You may not lethally take a migratory bird for these purposes. If your actions to remove the trapped migratory bird are likely to result in its lethal take, you must possess a Federal Migratory Bird Permit. However, if a bird you are trying to remove dies, you must dispose of the carcass immediately unless you have reason to believe that a museum or scientific institution might be able to use it. In that case, you should contact your nearest Fish and Wildlife Service office or your State wildlife agency about donating the carcass.


(7) For birds of species on the Federal List of Threatened or Endangered Wildlife, provided at 50 CFR 17.11(h), you may need a Federal threatened or endangered species permit before removing the birds (see 50 CFR 17.21 and 50 CFR 17.31).


(8) You must have a permit from your Regional migratory bird permits office to remove a bald eagle or a golden eagle from a building (see 50 CFR Part 22).


(9) Your action must comply with State and local regulations and ordinances. You may need a State, Tribal, or Territorial permit before you can legally remove the bird or birds.


(10) If an active nest with eggs or nestlings is present, you must seek the assistance of a federally permitted migratory bird rehabilitator in removing the eggs or nestlings. The rehabilitator is then responsible for handling them properly.


(11) If you need advice on dealing with a trapped bird, you should contact your closest Fish and Wildlife Service office or your State wildlife agency.


[39 FR 1178, Jan. 4, 1974, as amended at 50 FR 8638, Mar. 4, 1985; 54 FR 38151, Sept. 14, 1989; 68 FR 61137, Oct. 27, 2003; 72 FR 56928, Oct. 5, 2007]


§ 21.13 Permit exceptions for captive-reared mallard ducks.

Captive-reared and properly marked mallard ducks, alive or dead, or their eggs may be acquired, possessed, sold, traded, donated, transported, and disposed of by any person without a permit, subject to the following conditions, restrictions, and requirements:


(a) Nothing in this section shall be construed to permit the taking of live mallard ducks or their eggs from the wild.


(b) All mallard ducks possessed in captivity, without a permit, shall have been physically marked by at least one of the following methods prior to 6 weeks of age and all such ducks hatched, reared, and retained in captivity thereafter shall be so marked prior to reaching 6 weeks of age.


(1) Removal of the hind toe from the right foot.


(2) Pinioning of a wing: Provided, That this method shall be the removal of the metacarpal bones of one wing or a portion of the metacarpal bones which renders the bird permanently incapable of flight.


(3) Banding of one metatarsus with a seamless metal band.


(4) Tattooing of a readily discernible number or letter or combination thereof on the web of one foot.


(c) When so marked, such live birds may be disposed of to, or acquired from, any person and possessed and transferred in any number at any time or place: Provided, That all such birds shall be physically marked prior to sale or disposal regardless of whether or not they have attained 6 weeks of age.


(d) When so marked, such live birds may be killed, in any number, at any time or place, by any means except shooting. Such birds may be killed by shooting only in accordance with all applicable hunting regulations governing the taking of mallard ducks from the wild: Provided, That such birds may be killed by shooting, in any number, at any time, within the confines of any premises operated as a shooting preserve under State license, permit, or authorization; or they may be shot, in any number, at any time or place, by any person for bona fide dog training or field trial purposes: Provided further, That the provisions:


(1) The hunting regulations (part 20 of this subchapter), with the exception of § 20.108 (Nontoxic shot zones), and


(2) The Migratory Bird Hunting Stamp Act (duck stamp requirement) shall not apply to shooting preserve operations as provided for in this paragraph, or to bona fide dog training or field trial operations.


(e) At all times during possession, transportation, and storage until the raw carcasses of such birds are finally processed immediately prior to cooking, smoking, or canning, the marked foot or wing must remain attached to each carcass: Provided, That persons, who operate game farms or shooting preserves under a State license, permit, or authorization for such activities, may remove the marked foot or wing when either the number of his State license, permit, or authorization has first been legibly stamped in ink on the back of each carcass and on the container in which each carcass is maintained, or each carcass is identified by a State band on leg or wing pursuant to requirements of his State license, permit, or authorization. When properly marked, such carcasses may be disposed of to, or acquired from, any person and possessed and transported in any number at any time or place.


[40 FR 28459, July 7, 1975, as amended at 46 FR 42680, Aug. 24, 1981; 54 FR 36798, Sept. 5, 1989]


§ 21.14 Permit exceptions for captive-bred migratory waterfowl other than mallard ducks.

You may acquire captive-bred and properly marked migratory waterfowl of all species other than mallard ducks (Anas platyrhynchos), alive or dead, or their eggs, and possess and transport such birds or eggs and any progeny or eggs for your use without a permit, subject to the following conditions and restrictions. Additional restrictions on the acquisition and transfer of muscovy ducks (Cairina moschata) are in paragraph (g) of this section.


(a) You may acquire live waterfowl or their eggs only from a holder of a valid waterfowl sale and disposal permit in the United States. You also may lawfully acquire them outside of the United States with appropriate permits (see § 21.21 of subpart C of this part).


(b) All progeny of captive-bred birds or eggs from captive-bred birds must be physically marked as set forth in § 21.13(b).


(c) You may not transfer or dispose of captive-bred birds or their eggs, whether alive or dead, to any other person unless you have a waterfowl sale and disposal permit (see § 21.25 of subpart C of this part).


(d) Lawfully possessed and properly marked birds may be killed, in any number, at any time or place, by any means except shooting. Such birds may be killed by shooting only in accordance with all applicable hunting regulations governing the taking of like species from the wild (see part 20 of this subchapter).


(e) At all times during possession, transportation, and storage until the raw carcasses of such birds are finally processed immediately prior to cooking, smoking, or canning, you must leave the marked foot or wing attached to each carcass, unless the carcass was marked as provided in § 21.25(b)(6) and the foot or wing was removed prior to your acquisition of the carcass.


(f) If you acquire captive-bred waterfowl or their eggs from a waterfowl sale and disposal permittee, you must retain the FWS Form 3-186, Notice of Waterfowl Sale or Transfer, from the permittee for as long as you have the birds, eggs, or progeny of them.


(g) You may not acquire or possess live muscovy ducks, their carcasses or parts, or their eggs, except to raise them to be sold as food, and except that you may possess any live muscovy duck that you lawfully acquired prior to March 31, 2010. If you possess muscovy ducks on that date, you may not propagate them or sell or transfer them to anyone for any purpose, except to be used as food. You may not release them to the wild, sell them to be hunted or released to the wild, or transfer them to anyone to be hunted or released to the wild.


(h) Dealers in meat and game, hotels, restaurants, and boarding houses may serve or sell to their customers the carcass of any bird acquired from a holder of a valid waterfowl sale and disposal permit.


[75 FR 9320, Mar. 1, 2010]


§ 21.15 Authorization of take incidental to military readiness activities.

(a) Take authorization and monitoring. (1) Except to the extent authorization is withdrawn or suspended pursuant to paragraph (b) of this section, the Armed Forces may take migratory birds incidental to military readiness activities provided that, for those ongoing or proposed activities that the Armed Forces determine may result in a significant adverse effect on a population of a migratory bird species, the Armed Forces must confer and cooperate with the Service to develop and implement appropriate conservation measures to minimize or mitigate such significant adverse effects.


(2) When conservation measures implemented under paragraph (a)(1) of this section require monitoring, the Armed Forces must retain records of any monitoring data for five years from the date the Armed Forces commence their action. During Integrated Natural Resource Management Plan reviews, the Armed Forces will also report to the Service migratory bird conservation measures implemented and the effectiveness of the conservation measures in avoiding, minimizing, or mitigating take of migratory birds.


(b) Suspension or Withdrawal of take authorization. (1) If the Secretary determines, after seeking the views of the Secretary of Defense and consulting with the Secretary of State, that incidental take of migratory birds during a specific military readiness activity likely would not be compatible with one or more of the migratory bird treaties, the Secretary will suspend authorization of the take associated with that activity.


(2) The Secretary may propose to withdraw, and may withdraw in accordance with the procedures provided in paragraph (b)(4) of this section the authorization for any take incidental to a specific military readiness activity if the Secretary determines that a proposed military readiness activity is likely to result in a significant adverse effect on the population of a migratory bird species and one or more of the following circumstances exists:


(i) The Armed Forces have not implemented conservation measures that:


(A) Are directly related to protecting the migratory bird species affected by the proposed military readiness activity;


(B) Would significantly reduce take of the migratory bird species affected by the military readiness activity;


(C) Are economically feasible; and


(D) Do not limit the effectiveness of the military readiness activity;


(ii) The Armed Forces fail to conduct mutually agreed upon monitoring to determine the effects of a military readiness activity on migratory bird species and/or the efficacy of the conservation measures implemented by the Armed Forces; or


(iii) The Armed Forces have not provided reasonably available information that the Secretary has determined is necessary to evaluate whether withdrawal of take authorization for the specific military readiness activity is appropriate.


(3) When the Secretary proposes to withdraw authorization with respect to a specific military readiness activity, the Secretary will first provide written notice to the Secretary of Defense. Any such notice will include the basis for the Secretary’s determination that withdrawal is warranted in accordance with the criteria contained in paragraph (b)(2) of this section, and will identify any conservation measures or other measures that would, if implemented by the Armed Forces, permit the Secretary to cancel the proposed withdrawal of authorization.


(4) Within 15 days of receipt of the notice specified in paragraph (b)(3) of this section, the Secretary of Defense may notify the Secretary in writing of the Armed Forces’ objections, if any, to the proposed withdrawal, specifying the reasons therefore. The Secretary will give due consideration to any objections raised by the Armed Forces. If the Secretary continues to believe that withdrawal is appropriate, he or she will provide written notice to the Secretary of Defense of the rationale for withdrawal and response to any objections to the withdrawal. If objections to the withdrawal remain, the withdrawal will not become effective until the Secretary of Defense has had the opportunity to meet with the Secretary within 30 days of the original notice from the Secretary proposing withdrawal. A final determination regarding whether authorization will be withdrawn will occur within 45 days of the original notice.


(5) Any authorized take incidental to a military readiness activity subject to a proposed withdrawal of authorization will continue to be authorized by this regulation until the Secretary makes a final determination on the withdrawal.


(6) The Secretary may, at his or her discretion, cancel a suspension or withdrawal of authorization at any time. A suspension may be cancelled in the event new information is provided that the proposed activity would be compatible with the migratory bird treaties. A proposed withdrawal may be cancelled if the Armed Forces modify the proposed activity to alleviate significant adverse effects on the population of a migratory bird species or the circumstances in paragraphs (b)(2)(i) through (iii) of this section no longer exist. Cancellation of suspension or withdrawal of authorization becomes effective upon delivery of written notice from the Secretary to the Department of Defense.


(7) The responsibilities of the Secretary under paragraph (b) of this section may be fulfilled by his/her delegatee who must be an official nominated by the President and confirmed by the Senate.


[72 FR 8949, Feb. 28, 2007]


Subpart C – Specific Permit Provisions

§ 21.21 Import and export permits.

(a) Permit requirement. Except as provided in paragraphs (b), (c), and (d) of this section, you must have a permit to import or export migratory birds, their parts, nests, or eggs. You must meet the applicable permit requirements of the following parts of this subchapter B, even if the activity is exempt from a migratory bird import or export permit:


(1) 13 (General Permit Procedures);


(2) 14 (Importation, Exportation, and Transportation of Wildlife);


(3) 15 (Wild Bird Conservation Act);


(4) 17 (Taking, Possession, Transportation, Sale, Purchase, Barter, Exportation, and Importation of Wildlife and Plants);


(5) 20 (Migratory Bird Hunting);


(6) 21 (Migratory Bird Permits);


(7) 22 (Eagle Permits); and


(8) 23 (Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)).


(b) Exception to the import permit requirements. If you comply with the requirements of parts 14, 20, and 23 of this subchapter B, you do not need a migratory bird permit to import or possess migratory birds in the families Anatidae, Columbidae, Gruidae, Rallidae, and Scolopacidae for personal use that were lawfully hunted by you in a foreign country. The birds may be carcasses, skins, or mounts. You must provide evidence that you lawfully took the bird or birds in, and exported them from, the country of origin. This evidence must include a hunting license and any export documentation required by the country of origin. You must keep these documents with the imported bird or birds permanently.


(c) General exceptions to the export permit requirements. You do not need a migratory bird export permit to:


(1) Export live, captive-bred migratory game birds (see § 20.11 of this subpart) to Canada or Mexico if they are marked by one of the following methods:


(i) Removal of the hind toe from the right foot;


(ii) Pinioning of a wing by removal of all or some of the metacarpal bones of one wing, which renders the bird permanently incapable of flight;


(iii) Banding of one metatarsus with a seamless metal band; or


(iv) A readily discernible tattoo of numbers and/or letters on the web of one foot.


(2) Export live, lawfully-acquired, captive-bred raptors provided you hold a valid raptor propagation permit issued under § 21.30 and you obtain a CITES permit or certificate issued under part 23 to do so. You must have full documentation of the lawful origin of each raptor, and each must be identifiable with a seamless band issued by the Service, including any raptor with an implanted microchip for identification.


(d) Falconry birds covered under a CITES “pet passport.” You do not need a migratory bird import or export permit to temporarily export and subsequently import a raptor or raptors you lawfully possess for falconry to and from another country for use in falconry when the following conditions are met:


(1) You must meet applicable requirements in part 14 (Importation, Exportation, and Transportation of Wildlife) of this subchapter B.


(2) You may need one or more additional permits to take a bird from the United States or to return home with it (see 50 CFR part 15 (Wild Bird Conservation Act), part 17 (Endangered and Threatened Wildlife and Plants), and part 23 (Convention on International Trade in Endangered Species of Wild Fauna and Flora)).


(3) Each raptor must be covered by a CITES certificate of ownership issued under part 23 of this chapter. You must have full documentation of the lawful origin of each raptor (a copy of a propagation report with band number or a 3-186A report), and each must be identifiable with a seamless band or a permanent, nonreusable, numbered Fish and Wildlife Service leg band issued by the Service, including any raptor with an implanted microchip for identification. We may exempt a raptor from banding because of health concerns, but you must provide proof of the exemption from your falconry permitting authority.


(4) You must bring any raptor that you export out of the country for falconry under a CITES “pet passport” back to the United States when you return.


(5) If the raptor dies or is lost, you are not required to bring it back, but you must report the loss immediately upon your return to the United States in the manner required by the falconry regulations of your State, and according to any conditions on your CITES certificate.


(e) Inspection of imported or exported migratory birds. All migratory birds imported into, or exported from, the United States, and any associated documentation, may be inspected by the Service. You must comply with the import and export regulations in Part 14 of this chapter.


(f) Applying for a migratory bird import or export permit. You must apply to the appropriate Regional Director – Attention Migratory Bird Permit Office. You can find the address for your Regional Director in § 2.2 of subchapter A of this chapter. Your application package must include a completed application (form 3-200-6, or 3-200-7 if the import or export is associated with an application for a scientific collecting permit), and a check or money order made payable to the U.S. Fish and Wildlife Service in the amount of the application fee for permits issued under this section, as listed in § 13.11 of this chapter.


(g) Criteria we will consider before issuing a permit. After we receive a completed import or export application, the Regional Director will decide whether to issue you a permit based on the general criteria of § 13.21 of this chapter, and whether you meet the following requirements:


(1) You are at least 18 years of age;


(2) The bird was lawfully acquired; and


(3) The purpose of the import or export is consistent with the conservation of the species; and


(4) For an import permit, whether you are authorized to lawfully possess the migratory bird after it is imported.


(h) Are there standard conditions for the permit? Yes, standard conditions for your permit are set forth in part 13 of this subchapter B. You must also comply with the regulations in part 14 (Importation, Exportation, and Transportation of Wildlife). We may place additional requirements or restrictions on your permit as appropriate.


(i) Term of a migratory bird import and export permit. Your migratory bird import or export permit will be valid for not more than 5 years. It will expire on the date designated on its face unless it is amended or revoked.


[73 FR 47097, Aug. 13, 2008, as amended at 73 FR 55451, Sept. 25, 2008]


§ 21.22 Banding or marking permits.

(a) Permit requirement. A banding or marking permit is required before any person may capture migratory birds for banding or marking purposes or use official bands issued by the Service for banding or marking any migratory bird.


(b) Application procedures. Applications for banding or marking permits shall be submitted by letter of application addressed to the Bird Banding Laboratory, Office of Migratory Bird Management, U.S. Fish and Wildlife Service, Laurel, Maryland 20708. Each such application shall contain the general information and certification set forth by § 13.12(a) of this subchapter plus the following additional information:


(1) Species and numbers proposed to be banded or marked;


(2) Purpose of banding or marking;


(3) State or States in which authorization is requested; and


(4) Name and address of the public, scientific, or educational institution to which any specimens will be donated that are salvaged pursuant to paragraphs (c) (3) and (4) of this section.


(c) Additional permit conditions. In addition to the general conditions set forth in part 13 of this subchapter B, banding or marking permits shall be subject to the following conditions:


(1) The banding of migratory birds shall only be by official numbered leg bands issued by the Service. The use of any other band, clip, dye, or other method of marking is prohibited unless specifically authorized in the permit.


(2) All traps or nets used to capture migratory birds for banding or marking purposes shall have attached thereto a tag or label clearly showing the name and address of the permittee and his permit number, or the area in which such traps or nets are located must be posted with notice of banding operations posters (Form 3-1155, available upon request from the Bird Banding Laboratory, Office of Migratory Bird Management, U.S. Fish and Wildlife Service, Laurel, Md. 20708) which shall bear the name and address of the permittee and the number of his permit.


(3) The holder of a banding or marking permit may salvage, for the purpose of donating to a public scientific or educational institution, birds killed or found dead as a result of the permittee’s normal banding operations, and casualties from other causes. All dead birds salvaged under authority of a migratory bird banding or marking permit must be donated and transferred to a public scientific or educational institution at least every 6 months or within 60 days of the time such permit expires or is revoked, unless the permittee has been issued a special permit authorizing possession for a longer period of time.


(4) Permittees must keep accurate records of their operations and file reports as set forth in the North American Bird Banding Manual, or supplements thereto, in accordance with instructions contained therein.


(d) Term of permit. A banding or marking permit issued or renewed under this part expires on the date designated on the face of the permit unless amended or revoked, but the term of the permit shall not exceed three (3) years from the date of issuance or renewal.


[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38151, Sept. 14, 1989]


§ 21.23 Scientific collecting permits.

(a) Permit requirement. A scientific collecting permit is required before any person may take, transport, or possess migratory birds, their parts, nests, or eggs for scientific research or educational purposes.


(b) Application procedures. Submit applications for scientific permits to the appropriate Regional Director (Attention: Migratory bird permit office). You can find addresses for the Regional Directors in 50 CFR 2.2. Each application must contain the general information and certification required in § 13.12(a) of this subchapter, and the following additional information:


(1) Species and numbers of migratory birds or their parts, nests, or eggs to be taken or acquired when it is possible to determine same in advance;


(2) Location or locations where such scientific collecting is proposed;


(3) Statement of the purpose and justification for granting such a permit, including an outline of any research project involved;


(4) Name and address of the public, scientific, or educational institution to which all specimens ultimately will be donated; and


(5) If a State permit is required by State law, a statement as to whether or not the applicant possesses such State permit, giving its number and expiration date.


(c) Additional permit conditions. In addition to the general conditions set forth in part 13 of this subchapter B, scientific collecting permits shall be subject to the following conditions:


(1) All specimens taken and possessed under authority of a scientific collecting permit must be donated and transferred to the public scientific, or educational institution designated in the permit application within 60 days following the date such permit expires or is revoked, unless the permittee has been issued a special purpose permit (See § 21.27) authorizing possession for a longer period of time.


(2) Unless otherwise provided on the permit, all migratory game birds taken pursuant to a scientific collecting permit during the open hunting season for such birds must be in conformance with part 20 of this subchapter;


(3) Unless specifically stated on the permit, a scientific collecting permit does not authorize the taking of live migratory birds from the wild.


(4) In addition to any reporting requirement set forth in the permit, a report of the scientific collecting activities conducted under authority of such permit shall be submitted to the issuing officer on or before January 10 of each calendar year following the year of issue unless a different date is stated in the permit.


(d) Term of permit. A scientific collecting permit issued or renewed under this part expires on the date designated on the face of the permit unless amended or revoked, but the term of the permit shall not exceed three (3) years from the date of issuance or renewal.


[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38151, Sept. 14, 1989; 63 FR 52637, Oct. 1, 1998]


§ 21.24 Taxidermist permits.

(a) Permit requirement. A taxidermist permit is required before any person may perform taxidermy services on migratory birds or their parts, nests, or eggs for any person other than himself.


(b) Application procedures. Submit application for taxidermist permits to the appropriate Regional Director (Attention: Migratory bird permit office). You can find addresses for the Regional Directors in 50 CFR 2.2. Each application must contain the general information and certification required in § 13.12(a) of this subchapter, and the following additional information:


(1) The address of premises where taxidermist services will be provided;


(2) A statement of the applicant’s qualifications and experience as a taxidermist; and


(3) If a State permit is required by State law, a statement as to whether or not the applicant possesses such State permit, giving its number and expiration date.


(c) Permit authorizations. A permit authorizes a taxidermist to:


(1) Receive, transport, hold in custody or possession, mount or otherwise prepare, migratory birds, and their parts, nests, or eggs, and return them to another.


(2) Sell properly marked, captive reared migratory waterfowl which he has lawfully acquired and mounted. Such mounted birds may be placed on consignment for sale and may be possessed by such consignee for the purpose of sale.


(d) Additional permit conditions. In addition to the general conditions set forth in part 13 of this subchapter B, taxidermist permits shall be subject to the following conditions:


(1) Permittees must keep accurate records of operations, on a calendar year basis, showing the names and addresses of persons from and to whom migratory birds or their parts, nests, or eggs were received or delivered, the number and species of such, and the dates of receipt and delivery. In addition to the other records required by this paragraph, the permittee must maintain in his files, the original of the completed Form 3-186, Notice of Waterfowl Sale or Transfer, confirming his acquisition of captive reared, properly marked migratory waterfowl from the holder of a current waterfowl sale and disposal permit.


(2) Notwithstanding the provisions of paragraph (c) of this section, the receipt, possession, and storage by a taxidermist of any migratory game birds taken by another by hunting is not authorized unless they are tagged as required by § 20.36 of this subchapter. The required tags may be removed during the taxidermy operations but must be retained by the taxidermist with the other records required to be kept and must be reattached to the mounted specimen after mounting. The tag must then remain attached until the mounted specimen is delivered to the owner.


(e) Term of permit. A taxidermist permit issued or renewed under this part expires on the date designated on the face of the permit unless amended or revoked, but the term of the permit will not exceed five (5) years from the date of issuance or renewal.


[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38151, Sept. 14, 1989; 63 FR 52637, Oct. 1, 1998; 70 FR 18320, Apr. 11, 2005]


§ 21.25 Waterfowl sale and disposal permits.

(a) Permit requirement. You must have a waterfowl sale and disposal permit before you may lawfully sell, trade, donate, or otherwise dispose of, most species of captive-reared and properly marked migratory waterfowl or their eggs. You do not need a permit to sell or dispose of properly marked captive-reared mallard ducks (Anas platyrhynchos) or their eggs.


(b) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter B, waterfowl sale and disposal permits are subject to the following conditions:


(1) You may not take migratory waterfowl or their eggs from the wild, unless take is provided for elsewhere in this subchapter.


(2) You may not acquire migratory waterfowl or their eggs from any person who does not have a valid waterfowl propagation permit.


(3) Before they are 6 weeks of age, all live captive migratory waterfowl possessed under authority of a valid waterfowl sale and disposal permit must be physically marked as defined in § 21.13(b).


(4) All offspring of birds hatched, reared, and retained in captivity also must be marked before they are 6 weeks of age in accordance with § 21.13(b), unless they are held in captivity at a public zoological park, or a public scientific or educational institution.


(5) Properly marked captive-bred birds may be killed, in any number, at any time or place, by any means except shooting. They may be killed by shooting only in accordance with all the applicable hunting regulations governing the taking of like species from the wild.


(6) At all times during possession, transportation, and storage, until the raw carcasses of such birds are finally processed immediately prior to cooking, smoking, or canning, the marked foot or wing must remain attached to each carcass. However, if you have a State license, permit, or authorization that allows you to sell game, you may remove the marked foot or wing from the raw carcasses if the number of your State license, permit, or authorization has been legibly stamped in ink on the back of each carcass and on the wrapping or container in which each carcass is maintained, or if each carcass is identified by a State band on a leg or wing pursuant to requirements of your State license, permit, or authorization.


(7) You may dispose of properly marked live or dead birds or their eggs (except muscovy ducks and their eggs) in any number at any time or place, or transfer them to any person, if the birds are physically marked prior to sale or disposal, regardless of whether or not they have attained 6 weeks of age.


(8) You may propagate muscovy ducks (Cairina moschata) only for sale for food.


(i) You may not release muscovy ducks to the wild or transfer them for release to the wild.


(ii) You may not sell or transfer muscovy ducks to be killed by shooting.


(9) If you transfer captive-bred birds or their eggs to another person, you must complete FWS Form 3-186, Notice of Waterfowl Sale or Transfer, and provide all information required on the form, plus the method or methods by which individual birds are marked as required by § 21.13(b).


(i) Give the original of the completed form to the person acquiring the birds or eggs.


(ii) Retain one copy in your files.


(iii) Attach one copy to the shipping container for the birds or eggs, or include it with shipping documents that accompany the shipment.


(iv) By the end of the month in which you complete the transfer, mail two copies to the Fish and Wildlife Service Regional Office that issued your permit.


(c) Reporting requirements. You must submit an annual report by January 10th of each year to the Fish and Wildlife Service Regional Office that issued your permit. You must report the number of waterfowl of each species you possess on that date, and the method or methods by which each is marked.


(d) Applying for a waterfowl propagation permit. Submit your application for a waterfowl sale and disposal permit to the appropriate Regional Director (Attention: Migratory Bird Permit Office). You can find addresses for the Regional Directors in 50 CFR 2.2. Your application must contain the general information and certification required in § 13.12(a) of subchapter A of this chapter, and the following additional information:


(1) A description of the area where you will keep waterfowl in your possession;


(2) The species and numbers of waterfowl you possess and a statement showing from whom the birds were obtained;


(3) A statement indicating the method by which birds you hold will be marked as required by the provisions of this part 21; and


(4) The number and expiration of your State permit if you are required to have one.


(e) Term of permit. A waterfowl sale and disposal permit issued or renewed under this part expires on the date designated on the face of the permit unless amended or revoked, but the term of the permit will not exceed five (5) years from the date of issuance or renewal.


[75 FR 9320, Mar. 1, 2010]


§ 21.26 Special Canada goose permit.

(a) What is the special Canada goose permit and what is its purpose? The special Canada goose permit is a permit issued by us to a State wildlife agency authorizing certain resident Canada goose management and control activities that are normally prohibited. We will only issue such a permit when it will contribute to human health and safety, protect personal property, or allow resolution or prevention of injury to people or property. The management and control activities conducted under the permit are intended to relieve or prevent injurious situations only. No person should construe the permit as opening, reopening, or extending any hunting season contrary to any regulations established under Section 3 of the Migratory Bird Treaty Act.


(b) Who may receive a permit? Only State wildlife agencies (State) are eligible to receive a permit to undertake the various goose management and control activities. Additionally, only employees or designated agents of a permitted State wildlife agency may undertake activities for injurious resident Canada geese in accordance with the conditions specified in the permit, conditions contained in 50 CFR part 13, and conditions specified in paragraph (d) of this section.


(c) How does a State apply for a permit? Any State wildlife agency wishing to obtain a permit must submit an application to the appropriate Regional Director (see § 13.11(b) of this subchapter) containing the general information and certification required by § 13.12(a) of this subchapter plus the following information:


(1) A detailed statement showing that the goose management and control activities will either provide for human health and safety, protect personal property, or allow resolution of other injury to people or property;


(2) An estimate of the size of the resident Canada goose breeding population in the State;


(3) The requested annual take of resident Canada geese, including eggs and nests;


(4) A statement indicating that the State will inform and brief all employees and designated agents of the requirements of these regulations and permit conditions.


(d) What are the conditions of the permit? The special Canada goose permits are subject to the general conditions in 50 CFR part 13, the conditions elsewhere in this section, and, unless otherwise specifically authorized on the permit, the conditions outlined below:


(1) What are the limitations on management and control activities? (i) Take of resident Canada geese as a management tool under this section may not exceed the number authorized by the permit. States should utilize non-lethal goose management tools to the extent they deem appropriate in an effort to minimize lethal take.


(ii) Methods of take for the control of injurious resident Canada geese are at the State’s discretion. Methods include, but are not limited to, firearms, alpha-chloralose, traps, egg and nest manipulation and other damage control techniques consistent with accepted wildlife damage-management programs.


(2) When may a State conduct management and control activities? States and their employees and agents may conduct egg and nest manipulation activities at any time of year. Other management and control activities, including the take of resident Canada geese, under this section may only be conducted between March 11 and August 31.


(3) How must the States dispose or utilize geese taken under this permit? States and their employees and agents may possess, transport, and otherwise dispose of Canada geese taken under this section. States must utilize such birds by donation to public museums or public institutions for scientific or educational purposes, by processing them for human consumption and distributing them free of charge to charitable organizations, or by burying or incinerating them. States, their employees, and designated agents may not sell, offer for sale, barter, or ship for the purpose of sale or barter any Canada geese taken under this section, nor their plumage or eggs.


(4) How does the permit relate to existing State law? No person conducting management and control activities under this section should construe the permit to authorize the killing of injurious resident Canada geese contrary to any State law or regulation, nor on any Federal land without specific authorization by the responsible management agency. No person may exercise the privileges granted under this section unless they possess any permits required for such activities by any State or Federal land manager.


(5) When conducting management and control activities, are there any special inspection requirements? Any State employee or designated agent authorized to carry out management and control activities must have a copy of the permit and designation in their possession when carrying out any activities. The State must also require the property owner or occupant on whose premises the State is conducting activities to allow, at all reasonable times, including during actual operations, free and unrestricted access to any Service special agent or refuge officer, State wildlife or deputy wildlife agent, warden, protector, or other wildlife law enforcement officer (wildlife officer) on the premises where they are, or were, conducting activities. Furthermore, any State employee or designated agent conducting such activities must promptly furnish whatever information is required concerning such activities to any such wildlife officer.


(6) What are the reporting requirements of the permit? Any State employee or designated agent exercising the privileges granted by this section must keep records of all activities carried out under the authority of this permit, including the number of Canada geese killed and their disposition. The State must submit an annual report detailing activities, including the time, numbers and location of birds, eggs, and nests taken and non-lethal techniques utilized, before December 31 of each year. The State should submit the annual report to the appropriate Assistant Regional Director – Refuges and Wildlife (see § 10.22 of this subchapter).


(7) What are the limitations of the special permit? The following limitations apply:


(i) Nothing in this section applies to any Federal land within a State’s boundaries without written permission of the Federal Agency with jurisdiction.


(ii) States may not undertake any actions under any permit issued under this section if the activities adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act.


(iii) We will only issue permits to State wildlife agencies in the conterminous United States.


(iv) States may designate agents who must operate under the conditions of the permit.


(v) How long is the special permit valid? A special Canada goose permit issued or renewed under this section expires on the date designated on the face of the permit unless it is amended or revoked or such time that we determine that the State’s population of resident Canada geese no longer poses a threat to human health or safety, personal property, or injury to other interests. In all cases, the term of the permit may not exceed five (5) years from the date of issuance or renewal.


(vi) Can we revoke the special permit? We reserve the right to suspend or revoke any permit, as specified in §§ 13.27 and 13.28 of this subchapter.


(e) What are the OMB information collection requirements of the permit program? OMB has approved the information collection requirements of the permit and assigned clearance number 1018-0099. Federal agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. We will use the information collection requirements to administer this program and in the issuance and monitoring of these special permits. We will require the information from State wildlife agencies responsible for migratory bird management in order to obtain a special Canada goose permit, and to determine if the applicant meets all the permit issuance criteria, and to protect migratory birds. We estimate the public reporting burden for this collection of information to average 8 hours per response for 45 respondents (States), including the time for reviewing instructions, gathering and maintaining data needed, and completing and reviewing the collection of information. Thus, we estimate the total annual reporting and record-keeping for this collection to be 360 hours. States may send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[64 FR 32774, June 17, 1999, as amended at 79 FR 43965, July 29, 2014; 84 FR 28773, June 20, 2019]


§ 21.27 Special purpose permits.

Permits may be issued for special purpose activities related to migratory birds, their parts, nests, or eggs, which are otherwise outside the scope of the standard form permits of this part. A special purpose permit for migratory bird related activities not otherwise provided for in this part may be issued to an applicant who submits a written application containing the general information and certification required by part 13 and makes a sufficient showing of benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds, or other compelling justification.


(a) Permit requirement. A special purpose permit is required before any person may lawfully take, salvage, otherwise acquire, transport, or possess migratory birds, their parts, nests, or eggs for any purpose not covered by the standard form permits of this part. In addition, a special purpose permit is required before any person may sell, purchase, or barter captive-bred, migratory game birds, other than waterfowl, that are marked in compliance with § 21.13(b) of this part.


(b) Application procedures. Submit application for special purpose permits to the appropriate Regional Director (Attention: Migratory bird permit office). You can find addresses for the Regional Directors in 50 CFR 2.2. Each application must contain the general information and certification required in § 13.12(a) of this subchapter, and the following additional information:


(1) A detailed statement describing the project or activity which requires issuance of a permit, purpose of such project or activity, and a delineation of the area in which it will be conducted. (Copies of supporting documents, research proposals, and any necessary State permits should accompany the application);


(2) Numbers and species of migratory birds involved where same can reasonably be determined in advance; and


(3) Statement of disposition which will be made of migratory birds involved in the permit activity.


(c) Additional permit conditions. Inaddition to the general conditions set forth in part 13 of this subchapter B, special purpose permits shall be subject to the following conditions:


(1) Permittees shall maintain adequate records describing the conduct of the permitted activity, the numbers and species of migratory birds acquired and disposed of under the permit, and inventorying and identifying all migratory birds held on December 31 of each calendar year. Records shall be maintained at the address listed on the permit; shall be in, or reproducible in English; and shall be available for inspection by Service personnel during regular business hours. A permittee may be required by the conditions of the permit to file with the issuing office an annual report of operation. Annual reports, if required, shall be filed no later than January 31 of the calendar year following the year for which the report is required. Reports, if required, shall describe permitted activities, numbers and species of migratory birds acquired and disposed of, and shall inventory and describe all migratory birds possessed under the special purpose permit on December 31 of the reporting year.


(2) Permittees shall make such other reports as may be requested by the issuing officer.


(3) All live, captive-bred, migratory game birds possessed under authority of a valid special purpose permit shall be physically marked as defined in § 21.13(b) of this part.


(4) No captive-bred migratory game bird may be sold or bartered unless marked in accordance with § 21.13(b) of this part.


(5) No permittee may take, purchase, receive or otherwise acquire, sell, barter, transfer, or otherwise dispose of any captive-bred migratory game bird unless such permittee submits a Service form 3-186A (Migratory Bird Acquisition/Disposition Report), completed in accordance with the instructions on the form, to the issuing office within five (5) days of such transaction.


(6) No permittee, who is authorized to sell or barter migratory game birds pursuant to a permit issued under this section, may sell or barter such birds to any person unless that person is authorized to purchase and possess such migratory game birds under a permit issued pursuant to this part and part 13, or as permitted by regulations in this part.


(d) Term of permit. A special purpose permit issued or renewed under this part expires on the date designated on the face of the permit unless amended or revoked, but the term of the permit shall not exceed three (3) years from the date of issuance or renewal.


[39 FR 1178, Jan. 4, 1974, as amended at 54 FR 38152, Sept. 14, 1989; 63 FR 52637, Oct. 1, 1998]


§ 21.28 Special double-crested cormorant permit.

(a) What is the special double-crested cormorant permit, and what is its purpose? The special double-crested cormorant permit is a permit issued by the Service to State or Tribal fish and wildlife agencies that authorizes specific take activities that are normally prohibited and are intended to relieve or prevent impacts from cormorants on lands or in waters managed by those agencies and within those agencies’ jurisdiction. We will issue such a permit only when we determine that an application submitted by a State or Tribal fish and wildlife agency meets the requirements set forth in paragraph (c) of this section. The take activities conducted under the permit are intended to reduce or prevent conflicts associated with cormorants for the following concerns:


(1) Depredation of fish at State- and Tribal-owned or operated aquaculture facilities, including hatcheries;


(2) Realized and potential impacts to human health and safety (e.g., collisions of airplanes with birds, fecal contamination of urban wetlands);


(3) Impacts to threatened and endangered species (species listed under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and species identified in State- or Tribal-specific legislation as threatened or endangered) or those listed as Species of Greatest Conservation Need in State Wildlife Action Plans, where take activities to prevent depredation on aquatic Species of Greatest Conservation Need may occur only in natural or public waters;


(4) Damage to State- or Tribal-owned property and assets; and


(5) Depredation of wild and publicly stocked fish managed by State fish and wildlife agencies or federally recognized Tribes and accessible to the public or all Tribal members.


(b) Who may receive a permit? Only State and Tribal fish and wildlife agencies are eligible to receive a permit to undertake management and take activities. Additionally, only employees or subpermittees of a permitted State or Tribal fish and wildlife agency designated on the permit application may undertake activities for double-crested cormorants in accordance with the conditions specified in the permit, conditions specified in 50 CFR part 13, other requirements set forth in this section, and conditions specified in paragraph (d) of this section.


(c) How does a State or Tribe apply for a permit? Any State or federally recognized Tribal fish and wildlife agency wishing to obtain a permit must submit an application (FWS Form 3-200-90) to the appropriate Regional Director (see § 13.11(b) of this subchapter) containing the general information and certification required by § 13.12(a) of this subchapter plus the following information:


(1) A description of your State’s or Tribe’s double-crested cormorant conflicts, including physical location(s) and type of conflict specified in paragraph (a) of this section;


(2) A detailed description of the nonlethal methods (i.e., active hazing, passive hazing, habitat management, and changes in management practices) you have and/or will implement and how take activities will address one or more of the issues specified in paragraph (a) of this section;


(3) The requested annual take of double-crested cormorants by life-stage, including eggs and nests;


(4) A description of long-term plans to eliminate or significantly reduce continued need to take double-crested cormorants;


(5) A statement indicating that the State or Tribe will inform and brief all employees and subpermittees of the requirements of these regulations and permit conditions;


(6) A list of all subpermittees who may conduct activities under the special double-crested cormorant permit, including their names, addresses, and telephone numbers; and


(7) The name and telephone number of the individual in your agency who will oversee the double-crested cormorant management activities authorized under the permit.


(d) What are the conditions of the permit? The special double-crested cormorant permits are subject to the conditions specified in the permit, the general conditions in 50 CFR part 13, and other requirements set forth elsewhere in this section, and, unless otherwise specifically authorized on the permit, the following conditions:


(1) What are the limitations on management and take activities? Take of double-crested cormorants under this section may not exceed the number authorized by the permit. In addition, permittees must adhere to these provisions:


(i) States and Tribes must implement nonlethal methods, and independently determine that those methods are insufficient at resolving depredation conflicts, before taking double-crested cormorants.


(ii) A permit under this section does not authorize the take of any other migratory bird, including other species of cormorants; the take of bald or golden eagles; or the take of any species federally listed as threatened or endangered. If take of those species is likely to occur, the permittee must obtain permits specifically authorizing that take (i.e., permits under the Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, or the Endangered Species Act of 1973, as amended).


(iii) Methods of take for double-crested cormorants are at the State’s or Tribe’s discretion. Take of double-crested cormorants may occur by means of humane lethal take or active nest take. Lethal take of adults during the breeding season should occur prior to hatching of eggs. Adult birds may not be taken at any nest with young in it unless the take of adults addresses a human health and safety issue. States and Tribes and their subpermittees must make efforts to avoid disturbance to co-nesting species. Lethal take may occur by firearm in accordance with paragraph (d)(1)(iv) of this section or lethal or live traps. Active nest take may occur by egg oiling or destruction of nest material and contents (including viable eggs and chicks). Birds may be euthanized by cervical dislocation, CO2 asphyxiation, or other methods recommended by the American Veterinary Medical Association. Only 100 percent corn oil, a substance exempted from regulation by the Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, may be used to oil eggs. Other damage control methods of take consistent with accepted wildlife damage management programs may be authorized.


(iv) Take using firearms (other than an air rifle or air pistol) must use nontoxic shot or nontoxic bullets (see § 20.21 of this subchapter).


(v) Individuals conducting lethal take activities may not use decoys, calls, or other devices or bait to lure birds within gun range.


(vi) States and Tribes applying for the first time must consult with the U.S. Department of Agriculture’s Wildlife Services for an assessment of the appropriate level of take and provide recommendations of short-term measures to provide relief from depredation and long-term measures to help eliminate or significantly reduce conflicts. First-time applicants must include a completed “Form 37 Permit Review” from Wildlife Services. Permittees need not submit a Form 37 for renewal applications unless requested by the regional Migratory Bird Permit Office. Permittees should continue working with Wildlife Services for review of conflict management approaches and anticipated level of take, and to remain current on effective strategies for nonlethal removal.


(2) When may a State or Tribe conduct management and control activities? Actions may occur only when cormorants are committing or are about to commit depredations. State and Tribal employees and approved subpermittees may conduct management activities, including lethal take, at any time of year.


(3) How must States and Tribes dispose of or utilize cormorants taken under this permit? Unless otherwise authorized on your permit, double-crested cormorants taken under this permit may be temporarily possessed and transported for the purposes of disposal under the regulations in this section. Double-crested cormorants must be disposed of by donation to an entity authorized by permit or regulation to receive migratory birds, such as a public museum or public institution for scientific or educational purposes, or be destroyed completely by burial or incineration in accordance with Federal, State, and/or local laws and ordinances. States, Tribes, their employees, and subpermittees may not sell, offer for sale, barter, or ship for the purpose of sale or barter any double-crested cormorants taken under this section or their parts or eggs. Birds may not be retained for personal use.


(4) How does the permit relate to existing State and Tribal law and Federal land? Permits under this section do not authorize the take of double-crested cormorants contrary to any State or Tribal laws or regulations or on any Federal land without specific written authorization by the responsible management agency. Prior to taking double-crested cormorants pursuant to a permit under this section, the permittee must obtain any permits required by State, Tribal, or other Federal law or regulation.


(5) How will the Service ensure that persons conducting control activities have the authority to do so? Any State or Tribal employee or approved subpermittee authorized to carry out management and take activities must have a copy of the permit and, if appropriate, the subpermittee’s designation in their possession when carrying out any activities. The scope of this permit applies to lands or in waters managed by State and Tribal fish and wildlife agencies and within those agencies’ jurisdictions. If a State or Tribe must enter private property to access State and Tribal lands or waters where take is approved in their permit, the State or Tribe must obtain authorization from the private property owner, and require that the private property owner or occupant provide free and unrestricted access. The private property owner or occupant should also allow access at all reasonable times, including during actual operations, to any Service special agent or refuge officer, State or Tribal wildlife or deputy wildlife agent, warden, protector, or other wildlife law enforcement officer on the premises where they are, or were, conducting activities. Furthermore, any State or Tribal employee or approved subpermittee conducting such activities must promptly furnish information concerning such activities to any such wildlife officer.


(6) What are the reporting requirements of the permit? Any State or Tribal agency, when exercising the privileges of this permit, must keep records of all activities, including those of subpermittees, carried out under the authority of the special permit, including the number of double-crested cormorants taken and their disposition. Any other species of bird taken incidentally to double-crested cormorant management activities under this permit, along with the numbers of birds taken of those species, also must be reported. The State or Tribe must submit an annual report (FWS Form 3-202-56) detailing activities and purpose for take, including the date birds were taken, numbers, and locations and life stage of birds, eggs, and nests taken and nonlethal techniques utilized, by January 31 for activities conducted during the preceding calendar year. The State or Tribe must submit the annual report to the appropriate Migratory Bird Permit Office (see § 2.2 of this subchapter).


(7) What are the limitations of this permit? The following limitations apply:


(i) Nothing in this section applies to any Federal land within a State’s or Tribe’s boundaries without written permission of the Federal agency with jurisdiction.


(ii) We will issue permits only to State and Tribal fish and wildlife agencies in the conterminous (i.e., contiguous 48) United States.


(iii) States and Tribes may designate subpermittees who must operate under the conditions of the permit. Subpermittees can be employees of State and Tribal fish and wildlife agencies, U.S. Department of Agriculture’s Wildlife Services employees, employees of other Federal, State, or Tribal agencies, or private companies licensed to conduct wildlife damage abatement and under direct control of the permittee.


(iv) A special double-crested cormorant permit issued or renewed under the regulations in this section expires on the date designated on the face of the permit unless it is amended or revoked, or at such time we determine that conflicts with cormorants within the bounds of the specific population of double-crested cormorants have been reduced to the point where lethal take is no longer necessary. In all cases, the term of the permit may not exceed 1 year from the date of issuance or renewal.


(v) We reserve the right to suspend or revoke any permit, as specified in §§ 13.27 and 13.28 of this subchapter.


(e) What are the OMB information collection requirements of the permit program? OMB has approved the information collection requirements of the permit and assigned OMB Control Number 1018-0175. Federal agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Direct comments regarding the burden estimate or any other aspect of the information collection to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[85 FR 85555, Dec. 29, 2020]


§ 21.29 Falconry standards and falconry permitting.

(a) Background – (1) The legal basis for regulating falconry. The Migratory Bird Treaty Act prohibits any person from taking, possessing, purchasing, bartering, selling, or offering to purchase, barter, or sell, among other things, raptors (birds of prey) listed in § 10.13 of this subchapter unless the activities are allowed by Federal permit issued under this part and part 13 of this chapter, or as permitted by regulations in this part.


(i) This section covers all Falconiformes (vultures, kites, eagles, hawks, caracaras, and falcons) and all Strigiformes (owls) listed in § 10.13 of this subchapter (“native” raptors), and applies to any person who possesses one or more wild-caught, captive-bred, or hybrid raptors protected under the MBTA to use in falconry.


(ii) The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d, 54 Stat. 250) provides for the taking of golden eagles from the wild to use in falconry. It specifies that the only golden eagles that may be taken from the wild for falconry are those that would be taken because of depredations on livestock or wildlife (16 U.S.C. 668a).


(2) “Possession” and short-term handling of a falconry raptor. We do not consider short-term handling, such as letting any other person hold or practice flying a raptor you possess under your permit, to be possession for the purposes of this section if you are present and the person is under your supervision.


(3) Regulatory year for governing falconry. For determining possession and take of raptors for falconry, a year is any 12-month period for take defined by the State, tribe, or territory.


(b) Federal approval of State, tribal, and territorial falconry programs – (1) General. (i) A State (including the District of Columbia), tribe, or territory under the jurisdiction of the United States that wishes to allow falconry must establish laws and regulations (hereafter referred to as laws) that meet the standards established in this section. To allow the practice of falconry on tribal lands by tribal members or residents, a tribe may either certify that it has adopted Service-approved State laws if those laws are fully enforceable on tribal lands, or issue its own laws and request our approval.


(ii) State, tribal, or territorial laws may be more restrictive than these Federal standards but may not be less restrictive. For instance, a State, tribe, or territory may choose not to allow possession of some species of raptors otherwise allowed in this section. State, tribal, and territorial laws must be consistent with the terms contained in any convention between the United States and any foreign country for the protection of raptors and the Migratory Bird Treaty Act.


(2) Reporting. (i) The State, tribe, or territory must work with us to ensure that the electronic 3-186A reporting system (http://permits.fws.gov/186A) for reporting take, transfers, and loss of falconry birds is fully operational for residents of that jurisdiction.


(ii) If you are required to submit a report or other information under this section, you must either enter the required information in the electronic database at http://permits.fws.gov/186A, or at http://www.wildlife.ca.gov/FalconryReporting if you are a resident of California, or submit a paper form 3-186A to your State, tribal, or territorial agency that governs falconry.


(3) Federal approval and terms. If we concur that the regulations and the examination meet the requirements of this section, we will publish a rule in the Federal Register adding the State, tribe, or territory to the list of those approved for allowing the practice of falconry. We will terminate Federal falconry permitting in any State certified under these regulations on January 1st of the calendar year following publication of the rule.


(4) Review of a State, tribal, or territorial falconry program. We may review the administration of an approved State’s, tribe’s, or territory’s falconry program if complaints from the public or law enforcement investigations indicate the need for a review or for revisions to the State’s, tribe’s, or territory’s laws, or falconry examination. The review may involve, but is not limited to:


(i) Inspecting falconers’ facilities to ensure that the facilities standards in this section are met;


(ii) Processing time of applications;


(iii) Reviewing approved applications for completeness;


(iv) Determining that permits issued are appropriate for the experience of the applicants;


(v) Determining the adequacy of the State’s, tribe’s, or territory’s recordkeeping for the needs of State, tribal, or territorial and Federal law enforcement;


(vi) Reviewing laws to determine if they meet the requirements of this section; and


(vii) Reviewing a revised falconry examination to determine if it meets the requirements of this section.


(5) Suspension of a State’s, tribe’s, or territory’s certification. (i) We may propose to suspend, and may suspend, the approval of a State, tribal, or territorial falconry program in accordance with the procedures in paragraph (b)(5)(ii) of this section if we determine that the State, tribe, or territory has deficiencies in one or more items in paragraph (b)(4) of this section.


(ii) When we propose to suspend approval of a State, tribal, or territorial falconry program, we will first provide written notice to the State, tribe, or territory. Any such notice will include the basis for our determination that suspension is warranted. We will identify the actions that would, if implemented by the State, tribe, or territory, allow us to cancel the proposed suspension of approval.


(iii) The State, tribe, or territory will have 2 years from the date of our notification to correct the deficiencies. The State, tribe, or territory must respond in writing within that time to the proposed suspension, specifying the reasons why the certification should not be suspended. We will give due consideration to any objections and evidence raised by the State, tribe, or territory.


(iv) If we continue to believe that suspension is warranted, we will provide written notice of suspension, including the rationale for suspension, and respond to any objections to the suspension.


(A) The suspension of approval of the State’s, tribe’s, or territory’s falconry program will be effective 180 days from the date of the Service’s final notification of suspension.


(B) The State, tribe, or territory must then inform all falconry applicants and permittees of the impending cancellation of permitting.


(v) We will honor all falconry permits in that jurisdiction for 2 years from the date of our final notification of suspension of certification. At the end of the 2 years, you must transfer all raptors (including captive-bred raptors) held under permits from the State, tribal, or territorial falconry program to other falconry permittees in other States or territories, or to Federal raptor propagation or education permittees, institutions exempt from the Federal permit requirements, or permanently released to the wild (if it is allowed by the State, tribe, or territory and by this section), or euthanized. However, you may not permanently release hybrid raptors to the wild.


(6) Appeal of a decision to suspend State, tribal, or territorial certification. The State, tribe, or territory may appeal a decision to suspend certification to the Director within 180 days of the date of the Director’s decision. The Director will then respond to the State, tribe, or territory within 180 days of receipt of the appeal. The State, tribe, or territory certification will remain effective until the Director makes a final decision on the appeal.


(7) Recertification of compliance with this section if a State’s, tribe’s, or territory’s falconry permitting authority has been suspended. If a State, tribe, or territory has had its falconry permitting authority suspended but has corrected its problems, it must submit a request for approval of its permitting activities. We will then either recertify the program, or report in writing why we do not believe that earlier permitting problems have been rectified.


(8) Authority to suspend or revoke a falconry permit issued by a State, tribe, or territory. Suspension or revocation of a falconry permit is the responsibility of the State, tribe, or territory. However, compliance with all provisions of these regulations remains under the purview of the Fish and Wildlife Service.


(9) Standards in effect in your place of residence. If you live in any State except Hawaii, you may practice falconry as permitted in these regulations if you have a falconry permit from your State, tribe, or territory.


(c) Practicing falconry

(1) Permits and inspections to practice falconry. You must have a valid falconry permit from the State, tribe, or territory in which you reside (or the tribe on whose land you wish to practice falconry if you reside on tribal land or are a tribal member), to take, possess, or transport raptors for falconry, or to hunt with them. Depending on the game you hunt as a falconer and where you hunt, you also may need a Federal Migratory Bird Hunting and Conservation Stamp (a “Duck Stamp”), and State, tribal, or territorial hunting permits or stamps to hunt with a raptor.


(i) Some State, tribal, territorial, or local governments may require you to have additional permits or licenses to practice falconry or to take a raptor from the wild.


(ii) You must comply with all regulations governing migratory bird permitting.


(iii) If you reside for more than 120 consecutive days in a State or territory or on tribal lands other than the location of your primary residence, your falconry facilities in the second location must meet the standards in paragraph (d) of this section and of the corresponding State, tribal, or territorial lands, and your facilities must be listed on your falconry permit.


(2) Classes of permit to practice falconry. We recognize Apprentice, General, and Master Falconer levels. Each State, tribe, or territory may have any number of permit levels, but the standards for them must be at least as restrictive as these Federal standards. Your State, tribe, or territory may have more restrictive laws or regulations governing falconry.


(i) Requirements and possession options for an Apprentice Falconer.


(A) You must be at least 12 years of age.


(B) If you are under 18 years of age, a parent or legal guardian must sign your application and is legally responsible for your activities.


(C) You must have a letter from a Master Falconer or a General Falconer with a valid State, tribal, or territorial falconry permit who is at least 18 years old and has at least 2 years experience at the General Falconer level, stating that he or she will assist you, as necessary, in:


(1) Learning about the husbandry and training of raptors held for falconry;


(2) Learning and about relevant wildlife laws and regulations, and


(3) Deciding what species of raptor is appropriate for you to possess while an Apprentice.


(D) Regardless of the number of State, tribal, or territorial falconry permits you have, you may possess no more than one raptor for use in falconry.


(E) You may take raptors less than 1 year old, except nestlings, from the wild during any period or periods specified by the State, tribe, or territory. You may take any raptor species from the wild except a federally listed threatened or endangered species or the following species: Bald eagle (Haliaeetus leucocephalus), white-tailed eagle (Haliaeetus albicilla), Steller’s sea-eagle (Haliaeetus pelagicus), golden eagle (Aquila chrysaetos), American swallow-tailed kite (Elanoides forficatus), Swainson’s hawk (Buteo swainsoni), peregrine falcon (Falco peregrinus), flammulated owl (Otus flammeolus), elf owl (Micrathene whitneyi), and short-eared owl (Asio flammeus).


(F) You may possess a raptor of any Falconiform or Strigiform species, including wild, captive-bred, or hybrid individuals, except a federally listed threatened or endangered species, a bald eagle (Haliaeetus leucocephalus), a white-tailed eagle (Haliaeetus albicilla), a Steller’s sea-eagle (Haliaeetus pelagicus), or a golden eagle (Aquila chrysaetos).


(G) You do not need to capture a wild raptor yourself; it can be transferred to you by another falconry permittee.


(H) You may not possess a raptor taken from the wild as a nestling.


(I) You may not possess a bird that is imprinted on humans.


(J) Your raptor facilities must pass inspection by your State, tribe, or territory before you may be granted a permit.


(ii) Requirements and possession options for a General Falconer.


(A) You must be at least 16 years of age.


(B) If you are 16 or 17 years of age, a parent or legal guardian must sign your application and must be legally responsible for your activities.


(C) You must submit a document from a General Falconer or Master Falconer (preferably your sponsor) to your State, tribal, or territorial wildlife agency stating that you have practiced falconry with raptor(s) at the Apprentice Falconer level or equivalent for at least 2 years, including maintaining, training, flying, and hunting the raptor(s) for least 4 months in each year. That practice may include capture and release of falconry raptors.


(D) You may not substitute any falconry school program or education to shorten the period of 2 years at the Apprentice level.


(E) You may take and possess any species of Falconiform or Strigiform except a golden eagle, a bald eagle, a white-tailed eagle, or a Steller’s sea-eagle. You may use captive-bred individuals and hybrids of the species you are allowed to possess.


(F) Regardless of the number of State, tribal, or territorial falconry permits you have, you may possess no more than 3 raptors.


(iii) Requirements and possession options for a Master Falconer.


(A) You must have practiced falconry with your own raptor(s) at the General Falconer level for at least 5 years.


(B) You may take and possess any species of Falconiform or Strigiform except a bald eagle. However, you may take and possess a golden eagle, a white-tailed eagle, or a Steller’s sea eagle only if you meet the qualifications set forth under paragraph (c)(2)(iv).


(C) You may possess any captive-bred individuals or hybrids of species your State, tribe, or territory allows you to possess for use in falconry.


(D) Regardless of the number of State, tribal, or territorial falconry permits you have, you may possess no more than 5 wild raptors, including golden eagles.


(E) You may possess any number of captive-bred raptors. However, you must train them in the pursuit of wild game and use them in hunting.


(iv) If you meet the requirements in paragraph (c) of this section for falconry you may possess up to 3 eagles of the following species: golden eagle, white-tailed eagle, or Steller’s sea eagle.


(A) Your State, tribal, or territorial agency that regulates falconry must document the following before approving your request to possess an eagle to use in falconry:


(1) Your experience in handling large raptors, including information about the species you have handled and the type and duration of the activity in which you gained the experience.


(2) At least two letters of reference from people with experience handling and/or flying large raptors such as eagles, ferruginous hawks, goshawks (Accipiter gentilis), or great horned owls (Bubo virginianus). Each must contain a concise history of the author’s experience with large raptors, which can include, but is not limited to, handling of raptors held by zoos, rehabilitating large raptors, or scientific studies involving large raptors. Each letter must also assess your ability to care for eagles and fly them in falconry.


(B) A golden eagle, white-tailed eagle, or Steller’s sea-eagle you hold will count as one of the raptors you are allowed to possess for use in falconry.


(3) Taking a test to qualify for a falconry permit. Before you are issued an Apprentice permit you must correctly answer at least 80 percent of the questions on an examination administered by the State, tribe, or territory under which you wish to obtain a falconry permit. The examination must cover care and handling of falconry raptors, Federal, State or territorial, and tribal (if applicable) laws and regulations relevant to falconry, and other appropriate subject matter. Contact your State, tribal, or territorial agency that regulates falconry for information about permits and taking the test.


(4) Reinstatement of a lapsed falconry permit if your State, tribe, or territory allows it. (i) If your permit has lapsed for fewer than 5 years, it may be reinstated at the level you held previously if you have proof of your certification at that level.


(ii) If your permit has lapsed for 5 years or longer, you must correctly answer at least 80 percent of the questions on an examination administered by the State, tribe, or territory in which you wish to obtain a falconry permit. If you pass the exam, your permit may be reinstated at the level you previously held. Your facilities must pass State, tribal, or territorial inspection before you may possess a falconry bird.


(5) Permit to practice falconry at an appropriate level if you have experience in falconry but are a new resident in the United States. You may qualify for the falconry permit appropriate for your experience. To demonstrate your knowledge of U.S. falconry laws and regulations, you must correctly answer at least 80 percent of the questions on the supervised examination for falconers administered by the State, tribe, or territory under which you wish to obtain a falconry permit. If you pass the test, the State, tribe, or territory will decide for which level of falconry permit you are qualified, consistent with the class requirements in paragraph (c)(2) of this section. To do so, the State, tribe, or territory should base its decision on your documentation of your experience. Your falconry facilities must meet the standards in paragraph (d)(1) of this section before you may keep a raptor to use in falconry.


(6) Banding or tagging raptors used in falconry. (i) If you take a goshawk, Harris’s hawk (Parabuteo unicinctus), peregrine falcon (Falco peregrinus), or gyrfalcon (Falco rusticolus) from the wild or acquire one from another falconer or a rehabilitator, and if the raptor is not already banded, you must band it with a permanent, nonreusable, numbered U.S. Fish and Wildlife Service leg band that your State, tribal, or territorial agency will supply. If you wish, you may purchase and implant an ISO (International Organization for Standardization)-compliant (134.2 kHz) microchip in addition to the band. You must report the band number when you report your acquisition of the bird. Contact your State, tribal, or territorial agency for information on obtaining and disposing of bands. Within 10 days from the day on which you take the raptor from the wild, you must report take of the bird by submitting the required information (including the band number) using one of the methods listed in paragraph (b)(2)(ii) of this section. You may request an appropriate band from your State, tribal, or territorial agency in advance of any effort to capture a raptor. Your State, tribe, or territory may require that you band other species taken from the wild.


(ii) A raptor bred in captivity must be banded with a seamless metal band (see § 21.30). If you must remove a seamless band or if it is lost, within 10 days from the day you remove or note the loss of the band, you must report it and request a replacement U.S. Fish and Wildlife Service nonreusable band from your State, tribe, or territory. You must submit the required information using one of the methods listed in paragraph (b)(2)(ii) of this section. You must replace a seamless band that is removed or lost. You may implant an ISO-compliant (134.2 kHz) microchip in a falconry raptor in addition to the seamless band.


(iii) If the band must be removed or is lost from a raptor in your possession, you must report the loss of the band within 5 days, and you must then do at least one of the following:


(A) Request a U.S. Fish and Wildlife Service nonreusable band from your State, tribal, or territorial agency that regulates falconry. You must submit the required information within 10 days of rebanding the raptor using one of the methods listed in paragraph (b)(2)(ii) of this section.


(B) Purchase and implant an ISO-compliant (134.2 kHz) microchip in the bird and report the microchip information using one of the methods listed in paragraph (b)(2)(ii) of this section.


(iv) You must not alter, deface, or counterfeit a band. You may remove the rear tab on a band on a raptor you take from the wild, and you may smooth any imperfect surface if you do not affect the integrity of the band or the numbering on it.


(v) If you document health or injury problems for a raptor you possess that are caused by the band, the State, tribe, or territory may provide an exemption to the requirement for that raptor. In that case, you must keep a copy of the exemption paperwork with you when transporting or flying the raptor. If your bird is a wild goshawk, Harris’s hawk, peregrine falcon, or gyrfalcon, you must replace the band with an ISO-compliant microchip that we will supply to your State, tribe, or territory. We will not provide a microchip for a wild goshawk, Harris’s hawk, peregrine falcon, or gyrfalcon unless you have demonstrated that a band causes an injury or a health problem for the bird.


(vi) You may not band a raptor removed from the wild with a seamless numbered band.


(7) Carrying your permit(s) when conducting falconry activities. You must have your permit(s) or legible copies of them in your immediate possession if you are not at the location of your falconry facilities and you are trapping, transporting, working with, or flying your falconry raptor(s).


(8) Transporting a falconry raptor or raptors to other States or territories. If you have a valid falconry permit, you may possess and transport for falconry purposes a lawfully possessed raptor through other States or territories. However, any State, tribe, or territory may further regulate such transport.


(d) Facilities and care requirements – (1) Facilities you must have and maintain. You must keep all raptors you hold under your falconry permit in humane and healthful conditions.


(i) Whether they are indoors (a “mews”) or outdoors (a “weathering area”), your raptor facilities must protect raptors in them from the environment, predators, and domestic animals. You are responsible for the maintenance and security (protection from predators) of raptors you possess under your permit.


(ii) You must have raptor housing facilities approved by your State, tribe, or territory before you may obtain a bird to use in falconry. Your State, tribe, or territory may require that you have both indoor and outdoor facilities. A representative of your agency that regulates falconry, or its designee, must certify that your facilities and equipment meet the following standards:


(A) For housing raptors indoors or outdoors, the facility must protect raptors from predators and domestic animals.


(1) The facility must have a suitable perch for each raptor, at least one opening for sunlight, and must provide a healthy environment for raptors inside.


(2) You may house untethered raptors together if they are compatible with each other.


(3) Each raptor must have an area large enough to allow it to fly if it is untethered or, if tethered, to fully extend its wings or bate (attempt to fly while tethered) without damaging its feathers or contacting other raptors.


(4) Each falconry bird must have access to a pan of clean water unless weather conditions, the perch type used, or some other factor makes access to a water pan unsafe for the raptor.


(B) An indoor facility must be large enough to allow easy access for the care and feeding of raptors kept there.


(1) If raptors you house in this indoor facility are not tethered, all walls that are not solid must be protected on the inside. Suitable materials may include vertical bars spaced narrower than the width of the body of the smallest raptor you house in the enclosure. However, heavy-duty netting or other such materials may be used to cover the walls or roof of the enclosure.


(2) Acceptable indoor facilities include shelf perch enclosures where raptors are tethered side by side. Other innovative housing systems are acceptable if they provide the enclosed raptors with protection and allow them to maintain healthy feathers.


(3) An eyas raptor may be kept in any suitable container or enclosure until it is capable of flight.


(C) You may keep a falconry raptor or raptors inside your place of residence if you provide a suitable perch or perches. If you house your raptor(s) inside your home, you do not need to modify windows or other openings of the structure. Raptors kept in your home must be tethered when they are not being moved into or out of the location in which they are kept.


(D) An outdoor facility must be totally enclosed, and may be made of heavy-gauge wire, heavy-duty plastic mesh, slats, pipe, wood, or other suitable material.


(1) The facility must be covered and have at least a covered perch to protect a raptor held in it from predators and weather.


(2) The facility must be large enough to insure that the birds cannot strike the enclosure when flying from the perch.


(3) New types of housing facilities and/or husbandry practices may be used if they satisfy the requirements above and are approved by the State, tribal, or territorial authority regulating falconry.


(iii) You may keep falconry raptors outside in the open if they are under watch, such as by you or a family member at any location or, for example, by a designated individual in a weathering yard at a falconry meet.


(iv) You must inform your State, tribal, or territorial agency within 5 business days if you change the location of your facilities.


(2) Falconry facilities on property you do not own – (i) Your falconry facilities may be on property owned by another person where you reside, or at a different location. Regardless of location, the facilities must meet the standards in paragraph (d)(1) of this section and those of the State, tribe, or territory from which you have a falconry permit.


(ii) You must submit to your State, tribal, or territorial agency that regulates falconry a signed and dated statement showing that you agree that the falconry facilities and raptors may be inspected without advance notice by State, tribal (if applicable), or territorial authorities at any reasonable time of day, but you must be present. If your facilities are not on property that you own, you must submit a signed and dated statement showing that the property owner agrees that the falconry facilities and raptors may be inspected by State, tribal (if applicable), or territorial authorities at any reasonable time of day in the presence of the property owner; except that the authorities may not enter the facilities or disturb the raptors unless you are present.


(3) Equipment you must have and maintain. You must have jesses or the materials and equipment to make them, leash and swivel, bath container, and appropriate scales or balances for weighing raptor(s) you possess.


(4) Facilities you must have for a raptor when you are transporting it, using it for hunting, or are away from your home with it. You must be sure that the bird has a suitable perch and is protected from extreme temperatures, wind, and excessive disturbance. A “giant hood” or similar container is acceptable for transporting or housing a raptor when you are away from the permanent facility where it is housed.


(5) Temporarily housing a raptor outside of your permanent facilities when you are not transporting it or using it for hunting. You may house a raptor in temporary facilities for no more than 120 consecutive calendar days if the bird has a suitable perch and is protected from predators, domestic animals, extreme temperatures, wind, and excessive disturbance.


(6) Care of falconry raptors by another falconry permittee. Another falconry permittee may care for a raptor or raptors for you at your facilities or at that person’s facilities for up to 120 consecutive calendar days. The other person must have a signed and dated statement from you authorizing the temporary possession, plus a copy of FWS form 3-186A that shows that you are the possessor of each of the raptors. The statement must include information about the time period for which he or she will keep the raptor(s), and about what he or she is allowed to do with it or them.


(i) Your raptor(s) will remain on your falconry permit, and will not be counted against the possession limit of the person caring for your raptors.


(ii) If the person caring for your raptor(s) holds the appropriate level falconry permit, he or she may fly your raptor(s) in whatever way you authorize, including hunting.


(iii) This care of your raptors may be extended indefinitely in extenuating circumstances, such as illness, military service, or for a family emergency. The State, tribe, or territory may consider such instances on a case-by-case basis.


(7) Care of falconry raptors by someone who does not have a falconry permit. Another person may care for falconry birds you possess at your facilities for up to 45 consecutive calendar days.


(i) The raptor(s) will remain on your falconry permit.


(ii) The raptors must remain in your facilities.


(iii) This care may be extended indefinitely in extenuating circumstances, such as illness, military service, or for a family emergency.


(iv) The person(s) caring for your raptors may not fly them for any reason.


(8) Residence part of the year in another jurisdiction. (i) The State, tribe, or territory in which you live part-time may require that you obtain its falconry permit. You must contact the State, tribal, or territorial agency that regulates falconry to determine whether you need a permit.


(ii) If you live for more than 120 consecutive days in a State or territory or on tribal lands other than where you maintain your primary residence, your falconry facilities in the second State must meet the standards in this section.


(9) Inspections. Falconry equipment and records may be inspected in the presence of the permittee during business hours on any day of the week by State, tribal, or territorial officials.


(e) Taking, possessing, and transporting raptors for falconry – (1) Raptor species you may take from the wild to use for falconry. (i) You may not intentionally capture a raptor species that your classification as a falconer does not allow you to possess for falconry. If you capture a bird you are not allowed to possess, you must release it immediately.


(ii) On some tribal lands and in some States there may be State, tribal, or Federal restrictions on the take or use of these species, and you may need a tribal or State permit or permits to capture a bird.


(iii) State, tribal, or territorial regulations on take may be more restrictive than those in this section.


(iv) Take of any species must be in compliance with these regulations.


(v) If you are a Master Falconer and your State, tribe, or territory allows you to possess golden eagles, in any year you may take up to two golden eagles from the wild and only in a livestock depredation area during the time the depredation area and associated depredation permit or depredation control order are in effect. A livestock depredation area is declared by USDA Wildlife Services and permitted under § 22.23, or upon the request of a State governor and authorized by the Service Director pursuant to §§ 22.31 and 22.32.


(2) How and when you may take raptors from the wild to use in falconry. You may take no more than two raptors from the wild each year to use in falconry.


(i) If you transfer a bird you take from the wild to another permittee in the same year in which you capture it, the bird will count as one of the raptors you are allowed to take from the wild that year; it will not count as a capture by the recipient, though it will always be considered a wild bird.


(ii) If you are a General or Master Falconer, you may remove nestlings from a nest or aerie in accordance with tribal (if applicable), State, territorial, and Federal restrictions.


(iii) You may not take raptors at any time or in any manner that violates any law of the State, tribe, or territory on whose land you are trapping.


(iv) If you are responsible for reporting take of a raptor from the wild, use one of the methods listed in paragraph (b)(2)(ii) of this section. You must do this at your first opportunity to do so, but no later than 10 days after the capture of the bird.


(v) If you are present at the capture site, even if another person captures the bird for you, you are considered the person who removes the bird from the wild. You are responsible for filing a 3-186A form reporting take of the bird from the wild. This would occur, for example, if another person climbs a tree or rappells down a cliff and takes a nestling for you and gives it to you at the tree or cliff.


(vi) If you are not at the immediate location where the bird is taken from the wild, the person who removes the bird from the wild must be a General or Master Falconer, and must report take of the bird. If that person then transfers the bird to you, you must both file 3-186A forms reporting the transaction at your first opportunity to do so, but no later than 10 days after the transfer. The bird will count as one of the two raptors the person who took it from the wild is allowed to capture in any year. The bird will not count as a bird you took from the wild. The person who takes the bird from the wild must report the take even if he or she promptly transfers the bird to you.


(vii) If you have a long-term or permanent physical impairment that prevents you from attending the capture of a species you can use for falconry, a General or Master Falconer may capture a bird for you. You are then responsible for filing a 3-186A form reporting take of the bird from the wild, and the bird will count against the take of wild raptors that you are allowed in any year.


(viii) You must promptly release any bird you capture unintentionally.


(3) Other restrictions on taking raptors from the wild for falconry. (i) If you are a General or Master Falconer, you may take only raptors less than 1 year of age from the wild during any period or periods specified by the State, tribe, or territory. However, you may take an American kestrel or great horned owl of any age from the wild during any period or periods specified by the State, tribe, or territory.


(ii) If you are a Master Falconer authorized to possess golden eagles for use in falconry, you may capture a golden eagle in a livestock or wildlife depredation area during the time the depredation area and associated depredation permit or depredation control order are in effect.


(A) You may capture an immature or subadult golden eagle.


(B) You may take a nestling from its nest in a livestock depredation area if a biologist representing the agency responsible for declaring the depredation area has determined that the adult eagle is preying on livestock or wildlif


(C) You may take a nesting adult golden eagle only if a biologist representing the agency responsible for declaring the depredation area has determined that the adult eagle is preying on livestock or wildlife and that any nestling of the adult will be taken by a falconer authorized to possess it or by the biologist and transferred to an individual authorized to possess it.


(D) You must determine the locations of the livestock or wildlife depredation areas declared by USDA Wildlife Services, or published in the Federal Register by the Service in response to a State governor’s request. We will not notify you about them.


(E) Before you begin any trapping activities, you must inform our regional Law Enforcement office of your capture plans. You must notify the office in person, in writing, or via facsimile or email at least 3 business days before you start trapping. You may send an email with your trapping plans to [email protected], or you may deliver your trapping plans in person or by mail to the Law Enforcement office in your region at the applicable street address provided at 50 CFR 2.2. Telephone and fax numbers are as follows:


Region
Law enforcement office telephone number
Law enforcement office fax number
1503-231-6125503-231-2193
2505-248-7889505-248-7899
3612-713-5320612-713-5283
4404-679-7057404-679-7065
5413-253-8274413-253-8459
6303-236-7540303-236-7901
7907-786-3311907-786-3313
8916-414-6660916-414-6715

(F) You also must meet all requirements of the State or territory in which you plan to trap, or the tribe on whose lands you plan to trap.


(G) You must have permission from the landowner to capture an eagle; or if you wish to capture one on public land, the responsible agency must allow it.


(iii) You may recapture a falconry bird you have lost at any time. We do not consider recapture of a wild bird to be taking a bird from the wild.


(iv) You may recapture a raptor wearing falconry equipment or a captive-bred bird at any time – even if you are not allowed to possess the species. The bird will not count against your possession limit, nor will its take from the wild count against your limit. You must report your recapture of the bird to your State, tribal, or territorial agency that regulates falconry no more than 5 working days after the recapture. You must return a recaptured falconry bird to the person who lost it, if that person may legally possess it. Disposition of a bird whose legal possession cannot be determined will be at the discretion of the State, tribe, or territory.


(v) You may take any raptor that you are authorized to possess from the wild if the bird is banded with a Federal Bird Banding Laboratory aluminum bandexcept that you may not take a banded peregrine falcon from the wild.


(A) If a raptor (including a peregrine falcon) you capture is marked with a seamless metal band, a transmitter, or any other item identifying it as a falconry bird, you must report your capture of the bird to your State, tribal, or territorial agency that regulates falconry no more than 5 working days after the capture. You must return a recaptured falconry bird to the person who lost it. If that person cannot possess the bird or does not wish to possess it, you may keep it. Otherwise, disposition of a bird whose legal possession cannot be determined will be at the discretion of the State, tribe, or territory. While you keep a bird for return to the person who lost it, the bird will not count against your possession limit or your limit on take of raptors from the wild if you have reported possessing the bird to your State, tribal, or territorial falconry permit office.


(B) If you capture a peregrine falcon that has a research band (such as a colored band with alphanumeric codes) or a research marking attached to it, you must immediately release the bird, except that if the falcon has a transmitter attached to it, you are authorized to possess the bird up to 30 days if you wish to contact the researcher to determine if he or she wishes to replace the transmitter or its batteries. If the researcher wishes to do so, or to have the transmitter removed, the researcher or his or her designee can make the change or allow you to do so before you release the bird. If the researcher does not wish to keep the transmitter on the falcon, you may keep the bird if you captured it in circumstances in which capture of wild peregrines is allowed.


(C) If a raptor you capture has any other band, research marking, or transmitter attached to it, you must promptly report the band numbers and all other relevant information to the Federal Bird Banding Laboratory at 1-800-327-2263.


(1) You may contact the researcher and determine if he or she wishes to replace a transmitter attached to a bird you capture. If so, you are authorized to possess the bird up to 30 days until the researcher or his or her designee does so, or until you can replace it yourself. Disposition of the bird will be at the discretion of the researcher and your State, tribal, or territorial agency that regulates falconry.


(2) If you possess such a bird temporarily, it will not count against your possession limit for falconry raptors.


(vi) You must leave at least one young from any nest or aerie from which you take a nestling.


(vii) If you are an Apprentice Falconer, you may not take a nestling from the wild.


(viii) If you are a Master Falconer with a permit to do so, you may take, transport, or possess up to three eagles, including golden eagles, white-tailed eagles, or Steller’s sea-eagles, subject to the requirements in paragraph (c)(2)(iv) of this section and § 22.24 of this part. A golden eagle, white-tailed eagle, or Steller’s sea-eagle you possess counts as a bird to be included under your possession limit.


(ix) If you are a General or Master Falconer, you may take no more than one bird of a threatened species from the wild each year if the regulations in part 17 of this subchapter allow it and if you obtain a Federal endangered species permit to do so before you take the bird. You also may need a State, tribal, or territorial endangered species permit to take a listed species.


(4) Take of a species or subspecies that was recently removed from the Federal List of Endangered and Threatened Wildlife to use in falconry. We must first publish a management plan for the species. If take is allowed in the management plan, you may do so in accordance with the provisions for take in the plan.


(5) Raptors injured due to falconer trapping efforts. You have two options for dealing with a bird injured by your trapping efforts. In either case, you are responsible for the costs of care and rehabilitation of the bird.


(i) You may put the bird on your falconry permit. You must report take of the bird using one of the methods listed in paragraph (b)(2)(ii) of this section at your first opportunity to do so, but no more than 10 days after capture of the bird. You must then have the bird treated by a veterinarian or a permitted wildlife rehabilitator. The bird will count against your possession limit.


(ii) You may give the bird directly to a veterinarian, or a permitted wildlife rehabilitator, or an appropriate wildlife agency employee. If you do so, it will not count against your allowed take or the number of raptors you may possess.


(6) Acquisition, transfer, loss, or rebanding of a raptor. (i) If you acquire a raptor; transfer, reband, or microchip a raptor; if a raptor you possess is stolen; if you lose a raptor to the wild and you do not recover it within 30 days; or if a bird you possess for falconry dies; you must report the change within 10 days using one of the methods listed in paragraph (b)(2)(ii) of this section.


(ii) If a raptor you possess is stolen, you must report the theft to your State, tribal, or territorial agency that regulates falconry and to your Fish and Wildlife Service Regional Law Enforcement office (see paragraph (e)(3)(ii)(E) of this section) within 10 days of the theft of the bird.


(iii) You must keep copies of all electronic database submissions documenting take, transfer, loss, rebanding or microchipping of each falconry raptor until 5 years after you have transferred or lost the bird, or it has died.


(7) Acquiring a bird for falconry from a permitted rehabilitator. You may acquire a raptor of any age of a species that you are permitted to possess directly from a rehabilitator. Transfer to you is at the discretion of the rehabilitator.


(i) If you acquire a bird from a rehabilitator, within 10 days of the transaction you must report it using one of the methods listed in paragraph (b)(2)(ii) of this section.


(ii) If you acquire a bird from a rehabilitator, it will count as one of the raptors you are allowed to take from the wild that year.


(8) Flying a hybrid raptor in falconry. When flown free, a hybrid raptor must have attached at least two functioning radio transmitters to help you to locate the bird.


(9) Releasing a falconry bird to the wild. You must follow all applicable State or territorial and Federal laws and regulations before releasing a falconry bird to the wild.


(i) If the raptor you wish to release is not native to the State or territory, or is a hybrid of any kind, you may not permanently release the bird to the wild. You may transfer it to another falconry permittee.


(ii) If the species you wish to release is native to the State or territory and is captive-bred, you may not release the bird to the wild unless you have permission from the State, tribe, or territory to release the bird. If you are permitted to do so, you must hack the bird (allow it to adjust) to the wild at an appropriate time of year and an appropriate location. You must remove its falconry band (if it has one) and report release of the bird by submitting the required information using one of the methods listed in paragraph (b)(2)(ii) of this section.


(iii) If the species you wish to release is native to the State and was taken from the wild, you may release the bird only at an appropriate time of year and an appropriate location. You must remove its falconry band and report release of the bird by submitting the required information using one of the methods listed in paragraph (b)(2)(ii) of this section.


(10) Restrictions on transfers of falconry raptors from other falconers. We do not restrict the number of wild-caught or captive-bred raptors transferred to you, but you may not exceed your possession limit.


(f) Additional information on the practice of falconry – (1) Raptors removed from the wild for falconry are always considered “wild” raptors. No matter how long such a bird is held in captivity or whether it is transferred to another permittee or permit type, it is always considered a “wild” bird. However, it is considered to be taken from the wild only by the person who originally captured it. We do not consider the raptor to be taken from the wild by any subsequent permittee to whom it is legally transferred.


(2) “Hacking” of falconry raptors. Hacking (temporary release to the wild) is an approved method for falconers to condition raptors for falconry. If you are a General Falconer or a Master Falconer, you may hack a falconry raptor or raptors.


(i) You may need permission from your State, tribal, or territorial wildlife agency to hack a bird you possess for falconry. Check with your State, tribal, or territorial agency that regulates falconry to determine if hacking is allowed.


(ii) Any bird you are hacking counts against your possession limit and must be a species you are authorized to possess.


(iii) Any hybrid you hack must have two attached functioning radio transmitters during hacking.


(iv) You may not hack a falconry bird near a nesting area of a Federally threatened or endangered bird species or in any other location where the raptor is likely to harm a Federally listed threatened or endangered animal species that might be disturbed or taken by your falconry bird. You should contact your State or territorial wildlife agency before hacking a falconry bird to ensure that this does not occur. You can contact the State Fish and Wildlife Service office in your State or territory for information on Federally-listed species.


(3) Use of other falconry training or conditioning techniques. You may use other acceptable falconry practices, such as, but not limited to, the use of creance (tethered) flying, lures, balloons, or kites in training or conditioning falconry raptors. You also may fly falconry birds at bird species not protected under the Migratory Bird Treaty Act or at pen-raised animals.


(4) Selling or trading raptors under a falconry permit. (i) If allowed by your State, tribe or territory, you may sell, purchase, or barter, or offer to sell, purchase, or barter captive-bred raptors marked with seamless bands to other permittees who are authorized to possess them.


(ii) You may not purchase, sell, trade, or barter wild raptors. You may only transfer them.


(5) Transfer of wild-caught raptors captured for falconry to another type of permit. Under some circumstances you may transfer a raptor to another permit type if the recipient of the bird (which could be you) possesses the necessary permits for the other activity.


(i) If your State, tribe, or territory allows you to do so, you may transfer a wild-caught falconry bird to a raptor propagation permit after the bird has been used in falconry for at least 2 years (1 year for a sharp-shinned hawk, a Cooper’s hawk, a merlin, or an American kestrel). When you transfer the bird, you must provide a copy of the 3-186A form documenting acquisition of the bird by the propagator to the Federal migratory bird permit office that administers the propagation permit.


(ii) You may transfer a wild-caught bird to another permit type in less than 2 years (1 year for a sharp-shinned hawk, a Cooper’s hawk, a merlin, or an American kestrel) if the bird has been injured and a veterinarian or permitted wildlife rehabilitator has determined that the bird can no longer be flown for falconry.


(A) Within 10 days of transferring the bird , you must provide a copy of the 3-186A form documenting acquisition of the bird to the Federal migratory bird permit office that administers the other permit type.


(B) When you transfer the bird, you must provide a copy of the certification from the veterinarian or rehabilitator that the bird is not useable in falconry to the Federal migratory bird permits office that administers the other permit type.


(6) Transfer of captive-bred falconry raptors to another type of permit. You may transfer captive-bred falconry raptors if the holder of the other permit type is authorized to possess the bird(s). Within 10 days, you must report the transfer by submitting the required information using one of the methods listed in paragraph (b)(2)(ii) of this section.


(7) Use of raptors held under a falconry permit in captive propagation. You may use raptors you possess for falconry in captive propagation if you or the person overseeing the propagation has the necessary permit(s) (see § 21.30). You do not need to transfer a bird from your falconry permit if you use it for fewer than 8 months in a year in captive propagation, but you must do so if you permanently transfer the bird for propagation. The bird must then be banded as required in § 21.30.


(8) Use of falconry raptors in conservation education programs. If you are a General or Master Falconer, you may use a bird you possess in conservation education programs presented in public venues.


(i) You do not need a Federal education permit to conduct conservation education activities using a falconry raptor held under a State, tribal, or territorial falconry permit.


(ii) You may present conservation programs as an Apprentice Falconer if you are under the supervision of a General or Master Falconer when you do so.


(iii) You must use the bird primarily for falconry.


(iv) You may charge a fee for presentation of a conservation education program. The fee may not exceed the amount required to recoup your costs.


(v) In conservation education programs, you must provide information about the biology, ecological roles, and conservation needs of raptors and other migratory birds, although not all of these topics must be addressed in every presentation. You may not give presentations that do not address falconry and conservation education.


(vi) You are responsible for all liability associated with conservation education activities you undertake (see 50 CFR 13.50).


(9) Other educational uses of falconry raptors. You may allow photography, filming, or other such uses of falconry raptors to make movies or other sources of information on the practice of falconry or on the biology, ecological roles, and conservation needs of raptors and other migratory birds, though you may not be paid for doing so.


(i) You may not use falconry raptors to make movies, commercials, or in other commercial ventures that are not related to falconry.


(ii) You may not use falconry raptors for commercial entertainment; for advertisements; as a representation of any business, company, corporation, or other organization; or for promotion or endorsement of any products, merchandise, goods, services, meetings, or fairs, with the following exceptions:


(A) You may use a falconry raptor to promote or endorse a nonprofit falconry organization or association.


(B) You may use a falconry raptor to promote or endorse products or endeavors related to falconry, including, but not limited to items such as hoods, telemetry equipment, giant hoods, perches, materials for raptor facilities, falconry training and education materials, and scientific research and publication.


(10) Assisting in rehabilitation of raptors to prepare them for release. If your State, tribe, or territory allows you to do so, and if you are a General or Master Falconer, you may assist a permitted migratory bird rehabilitator to condition raptors in preparation for their release to the wild. You may keep a bird you are helping to rehabilitate in your facilities.


(i) The rehabilitator must provide you with a letter or form that identifies the bird and explains that you are assisting in its rehabilitation.


(ii) You do not need to meet the rehabilitator facility standards. You need only meet the facility standards in this section; your facilities are not subject to inspection for compliance with the standards in § 21.31.


(iii) You do not have to add any raptor you possess for this purpose to your falconry permit; it will remain under the permit of the rehabilitator.


(iv) You must return any such bird that cannot be permanently released to the wild to the rehabilitator for placement within the 180-day timeframe in which the rehabilitator is authorized to possess the bird, unless the issuing office authorizes you to retain the bird for longer than 180 days.


(v) Upon coordination with the rehabilitator, you must release all releaseable raptors to the wild or return them to the rehabilitator for release within the 180-day timeframe in which the rehabilitator is authorized to possess the birds, unless the issuing office authorizes you to retain and condition a bird for longer than 180 days, or unless the rehabilitator transfers the bird to you to hold under your falconry permit.


(11) Using a falconry bird in abatement activities. (i) If you are a Master Falconer, you may conduct abatement activities with a bird or birds you possess for falconry. If you are a General Falconer, you may conduct abatement activities only as a subpermittee of the holder of the abatement permit.


(ii) You may receive payment for providing abatement services if you have a Special Purpose Abatement permit.


(12) Feathers that a falconry bird or birds molts. (i) 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 you possess or previously held for as long as you have a valid falconry permit. You may receive feathers for imping from other permitted falconers, wildlife rehabilitators, or propagators in the United States, and you may give feathers to them. You may not buy, sell, or barter such feathers.


(ii) You may donate feathers from a falconry bird, except golden eagle feathers, to any person or institution with a valid permit to have them, or to anyone exempt from the permit requirement under § 21.12.


(iii) Except for primary or secondary flight feathers or retrices from a golden eagle, you are not required to gather feathers that are molted or otherwise lost by a falconry bird. You may leave the feathers where they fall, store them for imping, or destroy them. However, you must collect molted flight feathers and retrices from a golden eagle. If you choose not to keep them for imping, you must send them to the National Eagle Repository.


(iv) We request that you send all feathers (including body feathers) that you collect from any falconry golden eagle and that you do not need for imping, to the National Eagle Repository at the following address: U.S. Fish and Wildlife Service, National Eagle Repository, Rocky Mountain Arsenal, Building 128, Commerce City, Colorado 80022. The telephone number at the Repository is 303-287-2110.


(v) If your permit expires or is revoked, you must donate the feathers of any species of falconry raptor except a golden eagle to any person or any institution exempt from the permit requirement under § 21.12 or authorized by permit to acquire and possess the feathers. If you do not donate the feathers, you must burn, bury, or otherwise destroy them.


(13) Disposition of carcasses of falconry birds that die. (i) You must send the entire body of a golden eagle you held for falconry, including all feathers, talons, and other parts, to the National Eagle Repository.


(ii) You may donate the body or feathers of any other species of falconry raptor to any person or institution exempt under § 21.12 or authorized by permit to acquire and possess such parts or feathers.


(iii) If the bird was banded or microchipped prior to its death, you may keep the body of any falconry raptor except that of a golden eagle. You may keep the body so that the feathers are available for imping, or you may have the body mounted by a taxidermist. You may use the mount in giving conservation education programs. If the bird was banded, you must leave the band on the body. If the bird has an implanted microchip, you must leave the microchip in place.


(iv) If you do not wish to donate the bird body or feathers or keep it yourself, you must burn, bury, or otherwise destroy it or them within 10 days of the death of the bird or after final examination by a veterinarian to determine cause of death. Carcasses of euthanized raptors could pose a risk of secondary poisoning of eagles and other scavengers. You must take appropriate precautions to avoid such poisonings.


(v) If you do not donate the bird body or feathers or have the body mounted by a taxidermist, you may possess the flight feathers for as long as you have a valid falconry permit. However, you may not buy, sell, or barter the feathers. You must keep the paperwork documenting your acquisition of the bird.


(14) Visitors practicing falconry in the United States. (i) A visitor to the United States may qualify for a temporary falconry permit appropriate for his or her experience.


(A) The permit may be valid for any period specified by the State, tribe, or territory.


(B) To demonstrate knowledge of U.S. falconry laws and regulations, the visitor must correctly answer at least 80 percent of the questions on the supervised examination for falconers administered by the tribe, State, or territory from which he or she wishes to obtain a temporary falconry permit. If the visitor passes the test, the tribe, State, or territory will decide for what level of temporary permit the person is qualified. The decision should be based on the individual’s documentation of his or her experience.


(C) If you hold a temporary falconry permit, you may possess raptors for falconry if you have approved falconry facilities.


(D) A holder of a temporary falconry permit may fly raptors held for falconry by a permitted falconer.


(E) A holder of a temporary falconry permit may not take a bird from the wild to use in falconry.


(ii) For the duration of a permit from a State, tribe, or territory, a visitor may use any bird for falconry that he or she possess legally in his or her country of residence for that purpose, provided that import of that species to the United States is not prohibited, and provided that he or she has met all permitting requirements of his or her country of residence.


(A) A visitor must comply with the provisions in this section, those of the State, tribe or territory where he or she wishes to conduct falconry, and all States through which he or she will travel with the bird.


(B) The visitor may transport registered raptors. He or she may need one or more additional permits to bring a raptor into the United States or to return home with it (see 50 CFR part 14 (importation, exportation, and transportation of wildlife), part 15 (Wild Bird Conservation Act), part 17 (endangered and threatened species), part 21 (migratory bird import and export permits), and part 23 (endangered species convention)).


(C) Unless the visitor has the necessary permit(s) to bring a raptor into the United States and leave it here, he or she must take raptors brought into the country for falconry out of the country when he or she leaves. If a raptor brought into the United States dies or is lost while in this country, the visitor must document the loss before leaving the United States by reporting the loss to the State, tribal, or territorial agency that governs falconry where the bird was lost.


(D) When flown free, any bird brought to this country temporarily must have two attached radio transmitters that will allow the falconer to locate it.


(E)There also may be tribal or State restrictions on nonresidents practicing falconry or importing a raptor or raptors held for falconry.


(15) Taking falconry raptors to another country to use in falconry activities. A permit issued under this section authorizes you to export and then import raptors you legally possess for falconry to another country to use in falconry without an additional migratory bird import/export permit issued under § 21.21.


(i) You must meet any requirements in 50 CFR 14 subpart B.


(ii) You may need one or more additional permits to take a bird from the United States or to return home with it (see 50 CFR part 15 (Wild Bird Conservation Act), part 17 (endangered and threatened species), and part 23 (endangered species convention)).


(iii) Unless you have the necessary permit(s) to permanently export a raptor from the United States, you must bring any raptor you take out of the country for falconry back to the United States when you return. Each raptor must be covered by a CITES certificate of ownership issued under part 23 of this chapter. You must have full documentation of the lawful origin of each raptor (a copy of a propagation report with band number or a 3-186A report), and each must be identifiable with a seamless band or a permanent, nonreusable, numbered Fish and Wildlife Service leg band issued by the Service or an implanted microchip for identification.


(iv) If the raptor dies or is lost, you are not required to bring it back but must report the loss immediately upon your return to the United States in the manner required by the falconry regulations of your State, and any conditions on your CITES certificate.


(16) Permission to capture, fly, or release a falconry bird at any location. You do not need special or written permission for any of these activities on public lands if it is authorized. However, you must comply with all applicable Federal, State, tribal, or territorial laws regarding falconry activities, including hunting. Your falconry permit does not authorize you to capture or release raptors or practice falconry on public lands if it is prohibited on those lands, or on private property, without permission from the landowner or custodian.


(17) Practicing falconry in the vicinity of a Federally listed threatened or endangered animal species. In practicing falconry you must ensure that your activities do not cause the take of Federally listed threatened or endangered wildlife. “Take” under the Endangered Species Act means “to harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct” (Endangered Species Act § 3(18)). Within this definition, “harass” means any act that may injure wildlife by disrupting normal behavior, including breeding, feeding, or sheltering, and harm” means an act that actually kills or injures wildlife (50 CFR 17.3). To obtain information about threatened or endangered species that may occur in your State or on tribal lands where you wish to practice falconry, contact your State, tribal, or territorial agency that regulates falconry. You can contact your State Fish and Wildlife Service office for information on Federally-listed species.


(18) Trapping a bird for use in falconry in areas used by the northern aplomado falcon. Capture of a northern aplomado falcon (Falco femoralis septentrionalis) is not authorized because it is a violation of the Endangered Species Act. To avoid trapping northern aplomado falcons, you must comply with the following conditions when trapping a bird for use in falconry in the following counties.


If you trap in
You may trap a bird for falconry in the following counties if you comply with the conditions below.
(i) Arizona,Cochise, Graham, Pima, Pinal, or Santa Cruz.
(ii) New Mexico,Doa Ana, Eddy, Grant, Hidalgo, Lea, Luna, Otero, Sierra, or Socorro.
(iii) Texas,Aransas, Brewster, Brooks, Calhoun, Cameron, Culberson, Duval, Ector, El Paso, Hidalgo, Hudspeth, Jackson, Jeff Davis, Kenedy, Kinney, Kleberg, Matagorda, Maverick, Midland, Nueces, Pecos, Presidio, Reeves, Refugio, San Patricio, Starr, Terrell, Val Verde, Victoria, Webb, Willacy, or Zapata.

(iv) If you are an Apprentice Falconer, you must be accompanied by a General or Master Falconer when trapping in one of these counties.


(v) You may not begin trapping if you observe a northern aplomado falcon in the vicinity of your intended trapping effort.


(vi) You must suspend trapping if a northern aplomado falcon arrives in the vicinity of your trapping effort.


(19) Prey item killed by a falconry bird without your intent, including an animal taken outside of a regular hunting season. (i) You may allow your falconry bird to feed on the animal, but you may not take the animal into your possession.


(ii) You must report take of any federally listed threatened or endangered species to our Ecological Services Field Office for the location in which the take occurred.


(20) Take of bird species for which a depredation order is in place. With a falconry bird, you may take any species listed in parts 21.43, 44, 45, or 46 of this subchapter at any time in accordance with the conditions of the applicable depredation order, as long as you are not paid for doing so.


(21) Transfer of falconry raptors if a permittee dies. A surviving spouse, executor, administrator, or other legal representative of a deceased falconry permittee may transfer any bird held by the permittee to another authorized permittee within 90 days of the death of the falconry permittee. After 90 days, disposition of a bird held under the permit is at the discretion of the authority that issued it.


(g) Applying for a falconry permit. If you apply for a falconry permit, you must include the following information plus any other information required by your State, tribe, or territory.


(1) The completed application form from your State, tribal, or territorial agency that regulates falconry permits.


(2) Proof that you have passed the falconry test administered by the State, tribe, or territory where you maintain your legal residence, or proof that you have previously held a falconry permit at the level you seek.


(3) For an Apprentice permit, you must provide the following:


(i) A letter from a General or Master Falconer stating that he or she has agreed to assist you in learning about the husbandry and training of raptors held for falconry and about relevant wildlife laws and regulations, and in deciding what species of raptor is appropriate for you to possess while an Apprentice.


(ii) An original, signed certification that you are particularly familiar with § 10.13 of this subchapter, the list of migratory bird species to which the Migratory Bird Treaty Act applies; part 13 of this subchapter, general permit regulations; part 21 of this subchapter, migratory bird permits; and part 22 of this subchapter, eagle permits. The certification can be incorporated into tribal and State application forms, and must be worded as follows:



I certify that I have read and am familiar with the regulations in title 50, part 13, of the Code of Federal Regulations and the other applicable parts in subchapter B of chapter I of title 50, and that the information I have submitted is complete and accurate to the best of my knowledge and belief. I understand that any false statement herein may subject me to the criminal penalties of 18 U.S.C. 1001.


(4) For an Apprentice or General Falconry permit, a parent or legal guardian must co-sign your application if you are under 18.


(5) For a General Falconer permit:


(i) Information documenting your experience maintaining falconry raptors, including a summary of what species you held as an Apprentice Falconer and how long you possessed each bird, and


(ii) A letter from a General Falconer or Master Falconer (preferably your sponsor) attesting that you have practiced falconry with raptor(s) at the Apprentice Falconer level for at least 2 years, including maintaining, training, flying, and hunting the raptor(s) for at least 4 months in each year.


(6) For a Master Falconer permit, you must attest that you have practiced falconry at the General Falconer level for at least 5 years.


(h) Updating a falconry permit after a move. If you move to a new State or outside the jurisdiction of your tribe or territory and take falconry birds with you, within 30 days you must inform both your former State, tribe, or territory and the permitting authority for your new place of residence of your address change. To obtain a new falconry permit, you must follow the permit application procedures of the authority under which you wish to acquire a new permit. You may keep falconry birds you hold while you apply for a new falconry permit. However, the State, tribe, or territory into which you move may place restrictions on your possession of falconry birds until you meet the residency requirements there.


(i) Restoration of revoked permits. Upon request of the person whose permit has been revoked, the State, tribe, or territory may restore the person’s falconry permit at the end of the revocation period.


(j) Information collection requirements. The information collection required for falconry applications and for falconry bird disposition on FWS Form 3-186A is approved by the Office of Management and Budget under control number 1018-0022. The information is necessary to determine take of raptors from the wild for falconry.


(k) Database required of States, tribes, and territories. Each State, tribe, or territory that permits falconry must maintain information in a database. The information will enable enforcement of this section.


(1) The State, tribal, or territorial database must be compatible with the database that we maintain. The State, tribal, or territorial database must contain the following information:


(i) The current address of each person with a falconry permit.


(ii) The classification of each person with a falconry permit – Apprentice Falconer, General Falconer, or Master Falconer.


(iii) The address of the falconry facilities of each person with a falconry permit.


(iv) The Federal falconry identifier number assigned via the 3-186A system to each person with a falconry permit.


(v) Whether each permittee is authorized to possess eagles.


(vi) Information on the status of each person’s permit: whether it is active, suspended, or revoked.


(2) Information on each permit granted, including changes in status from Apprentice Falconer to General Falconer or General Falconer to Master Falconer, and moves of falconers or their facilities must be entered into the State’s, tribe’s, or territory’s database within 30 days of the granting of the permit or a falconer’s change in status. New additions to the State, tribal, or territorial database must be forwarded to us monthly.


[73 FR 59465, Oct. 8, 2008, as amended at 74 FR 64640, Dec. 8, 2009; 75 FR 931, Jan. 7, 2010; 75 FR 3395, Jan. 21, 2010; 75 FR 81141, Dec. 27, 2010; 76 FR 71912, Nov. 21, 2011; 77 FR 66408, Nov. 5, 2012; 78 FR 35152, June 12, 2013; 78 FR 72832, Dec. 4, 2013; 80 FR 38015, July 2, 2015]


§ 21.30 Raptor propagation permits.

(a) Legal basis for regulating raptor propagation. (1) Among other actions, the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) prohibits any person from capturing from the wild, possessing, purchasing, bartering, selling, or offering to purchase, barter, or sell raptors (vultures, kites, eagles, hawks, caracaras, falcons, and owls) listed in § 10.13 of this chapter unless the activities are allowed by Federal permit issued pursuant to this part and part 13 of this chapter, or as permitted by regulations in this part.


(i) This section covers all “native” raptors (accipitriformes, falconiformes, and strigiformes listed in § 10.13 of this chapter), and applies to any person who possesses one or more wild-caught, captive-bred, or hybrid raptors protected under the MBTA to use in raptor propagation, except that neither bald eagles (Haliaeetus leucocephalus) nor golden eagles (Aquila chrysaetos) may be propagated under these regulations or any other permit regulation listed in part 21 of this chapter.


(ii) You must have a Federal raptor propagation permit before you may capture from the wild, possess, transport, import, purchase, barter, or offer to sell, purchase, or barter any raptor, raptor egg, or raptor semen for propagation purposes. Your State may require that you also have a State permit.


(2) Other regulations, such as those for the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Wild Bird Conservation Act, and State regulations, may affect propagation-related activities. In cases in which more than one set of regulations affect raptor propagation, the most restrictive requirements affecting the activity will apply.


(b) Species available for raptor propagation. If you have a raptor propagation permit, you may attempt to propagate any species of raptor listed in § 10.13 of this chapter, with the following exceptions:


(1) You may not propagate bald eagles (Haliaeetus leucocephalus) or golden eagles (Aquila chrysaetos) under a raptor propagation permit or any other permit regulation listed in part 21 of this chapter.


(2) If you are authorized by your Regional Migratory Bird Permit office to do so, you may possess and attempt to propagate threatened or endangered raptor species. See paragraphs (f) and (u) of this section.


(c) Facilities used for raptor propagation. In addition to the general conditions found in part 13 of this chapter, raptor propagation permits are subject to the following additional conditions:


(1) You must maintain any tethered raptor you possess under this permit in accordance with the facilities and standards requirements in § 21.29, unless you obtain a written exception to this requirement from your Regional Migratory Bird Permit Office.


(2) For untethered raptors, your breeding facilities must be soundly constructed and entirely enclosed with wood, wire netting, or other suitable material that provides a safe, healthy environment.


(i) Your facilities must minimize the risk of injury by providing protection from predators, pets, and extreme weather conditions.


(ii) Your facilities must minimize the risk of raptor injuries due to collision with interior or perimeter construction materials and equipment, such as support poles, windows, wire netting, perches, or lights.


(iii) Your facilities must have suitable perches and nesting sites, fresh air ventilation, a source of light, a well-drained floor, and ready access for cleaning. Each bird must have access to a pan of clean water unless weather conditions, the perch type used, or some other factor makes access to a water pan unsafe for the raptor.


(iv) You do not need to house your propagation raptors separately from other raptors you hold. However, you must keep raptors that you are not authorized to propagate separated from those you use in propagation.


(d) Inspection. In the presence of the permittee, Federal or State officials may inspect propagation raptors, facilities, equipment, and records during business hours on any day of the week.


(e) Banding of raptors used for propagation. – (1) Certain species. You must band a goshawk (Accipiter gentilis), Harris’s hawk (Parabuteo unicinctus), peregrine falcon (Falco peregrinus), or gyrfalcon (Falco rusticolus) that you take from the wild to use in captive propagation.


(i) You must use a nonreusable band that we provide.


(ii) You may purchase and implant an ISO (International Organization for Standardization)-compliant 134.2 kHz microchip in the raptor in addition to banding it.


(iii) You must report the information on the raptor (including information identifying the microchip, if you implant one, and where it is located) at http://permits.fws.gov/186A or by submitting a paper FWS Form 3-186A form to your State or tribal agency that governs propagation, if applicable, and to us.


(2) Banding nestlings. Unless a particular nestling is specifically exempted, you must band every captive-bred raptor within 2 weeks of hatching.


(i) You must use a numbered, seamless band that we will provide.


(ii) You must use a band with an inside diameter that is small enough to prevent loss or removal of the band when the raptor is grown without causing serious injury to the raptor or damaging the band’s integrity or one-piece construction.


(iii) You may band a nestling with more than one band of different sizes if you cannot determine the proper size when you band the nestling. You must then remove and destroy all but the correctly sized band before the nestling is 5 weeks old.


(iv) You may submit a letter requesting an exemption from the banding requirement for any nestling or fledgling for which the band causes a problem. If you demonstrate that the band itself or the behavior of the raptor in response to the band poses a hazard to the raptor, we may exempt that raptor from the banding requirement. You must destroy the band after you remove it.


(3) You may purchase and implant an ISO-compliant 134.2 kHz microchip in the raptor in addition to a band. You must report information to identify the microchip and where on the raptor the chip is implanted when you report your acquisition of the raptor.


(4) If a captive-bred raptor is not banded with a seamless band, or if you must remove the seamless band from a captive-bred raptor, you must band the bird with a nonreusable band that we provide.


(f) Taking and transferring raptors or raptor eggs from the wild to use in propagation. You may take no more than two raptors or raptor eggs from the wild each year to use in propagation.


(1) The State must authorize you to take the raptor(s) or egg(s) from the wild.


(2) You must comply with all State laws in taking raptor(s) or egg(s) from the wild.


(3) You may take a raptor listed in § 17.11(h) of this chapter as “endangered” or “threatened” from the wild only if you have a permit under part 17 of this chapter (See paragraph (u) of this section.).


(4) You may transfer a raptor taken from the wild for propagation to any other person authorized to possess it, except that you must comply with the prohibitions in § 21.29 on a transfer to a falconer.


(g) Transfer, purchase, sale, or barter of captive-bred raptors, eggs, or semen. (1) You may transfer, sell, or barter a lawfully possessed captive-bred raptor to another person authorized to possess captive-bred raptors if the raptor is marked on the metatarsus by a seamless, numbered band that we provide.


(2) You may transfer, sell, or barter a lawfully possessed raptor egg or raptor semen produced by a raptor held under your captive propagation permit (including a raptor taken from the wild) to another raptor propagation permittee.


(3) You may not purchase, sell, or barter any raptor eggs or any raptors taken from the wild in the United States or its territories or possessions, any semen collected from a raptor in the wild in the United States or its territories or possessions, or any raptor hatched from eggs taken from the wild in the United States or its territories or possessions.


(h) Required paperwork. You must have a copy of a properly completed FWS Form 3-186A (Migratory Bird Acquisition and Disposition Report) for each raptor you acquire or that is transferred to you.


(1) You do not have to submit or have a copy of an FWS Form 3-186A for raptors you produce by captive propagation if you keep the raptors in your possession under your propagation permit.


(2) If you sell, trade, barter, or transfer a raptor held under your captive propagation permit, even if the transfer is to a falconry permit you hold, you must complete an FWS Form 3-186A and send it to us within 5 calendar days of the transfer.


(i) Care of a propagation raptor by another person


(1) Care of a propagation raptor by another permittee. The regulations in this paragraph pertain to care of propagation raptors by persons other than the permittee. Another person who can legally possess raptors may care for a propagation raptor for you for up to 120 calendar days.


(i) The person must have a letter from you authorizing him or her to care for the birds, beginning on the date of your letter.


(ii) The raptor will remain on your raptor propagation permit. If the person who temporarily holds it for you is a falconer or a captive propagator, the raptor will not be counted against his or her possession limit on raptors held for falconry or propagation. However, the other person may not use the raptor in falconry or in propagation.


(iii) If you wish to have someone else care for a propagation raptor for more than 120 days, or if you wish to let another person use the raptor in falconry or captive propagation, you must transfer the raptor to that person and report the transfer by submitting a completed FWS Form 3-186A.


(2) Care of a propagation raptor by an individual who does not have a propagation or falconry permit. Another person may care for propagation raptors you possess for up to 120 consecutive calendar days.


(i) The raptor(s) will remain on your propagation permit.


(ii) The raptors must remain in your facilities.


(iii) This care may be extended indefinitely in extenuating circumstances, such as illness, military service, or for a family emergency. The person(s) caring for your raptors may not fly them for any reason.


(j) Care of nestlings by an individual who does not hold a migratory bird permit. Another person may temporarily care for and band nestlings you hold from the time they are hatched until they are fully feathered. You may allow the other person to keep the nestlings at another location. You must give the individual a letter authorizing him or her to care for the nestlings, beginning on the date of your letter. The care might be part of each day during the nestling period so that the nestlings can be fed, or it might be a series of full days if transport to and from the breeding facility is not practical or needed.


(k) Disposition of molted feathers from a live raptor or carcasses of raptors held under your permit. (1) You may donate the body or feathers of any species you possess under your propagation permit to any person or institution exempt under § 21.12 or authorized by permit to acquire and possess such parts or feathers.


(2) For any raptor you hold under your propagation permit, if the bird was banded or microchipped prior to its death, you may keep the body to have the feathers available for imping or to have the body mounted by a taxidermist. You may use the mount in propagation activities or in giving conservation education programs. If the bird was banded, you must leave the band on the body. If the bird has an implanted microchip, the microchip must be placed inside the mounted bird.


(3) If you do not wish to donate the bird body or feathers or keep it or them yourself, you must burn, bury, or otherwise destroy it or them within 10 days of the death of the bird or after final examination by a veterinarian to determine cause of death. Carcasses of euthanized raptors could pose a risk of secondary poisoning of eagles and other scavengers. You must take appropriate precautions to avoid such poisonings.


(4) If you do not donate the bird body or feathers or have the body mounted by a taxidermist, you may possess the flight feathers for as long as you have a valid raptor propagation or falconry permit. However, you may not buy, sell, or barter the feathers. You must keep the paperwork documenting your acquisition of the bird.


(l) Raptor products. You may possess addled or blown eggs, nests, and feathers from raptors held under permit, and may transfer any of these items to any other person authorized to possess them.


(m) Release to the wild. You may release a captive-bred raptor to the wild if it is allowed by the State or territory in which you wish to release the raptor, except that you may not release a hybrid raptor to the wild. You must leave the captive-bred band on any raptor you release to the wild.


(n) Conservation education programs. You may use a raptor you possess for raptor propagation in conservation education programs presented in public venues.


(1) You do not need a Federal education permit to conduct conservation education activities using a propagation raptor.


(2) You must use the raptor primarily for propagation.


(3) You may charge a fee for presentation of a conservation education program. The fee may not exceed the amount required to recoup your costs.


(4) In conservation education programs, you must provide information about the biology, ecological roles, and conservation needs of raptors and other migratory birds, although not all of these topics must be addressed in every presentation. You may not give presentations that do not address falconry and conservation education.


(5) You are responsible for all liability associated with conservation education activities you undertake (see § 13.50 of this chapter).


(o) Permit restrictions. With limited exceptions, you may use raptors held under your captive propagation permit only for propagation or keep them to transfer or sell. You must transfer a raptor used in captive propagation to a falconry permit before you or another person may use it in falconry. If you transfer a raptor used in captive propagation to another permit, you and the recipient of the raptor (which might be you) must complete an FWS Form 3-186A and report the transfer. You do not need to transfer a bird from your falconry permit (if you hold one) if you use the bird for fewer than 8 months in a year in captive propagation, but you must do so if you permanently transfer the bird for propagation. The bird must then be banded as required in paragraph (e).


(p) Training propagation raptors. You may use falconry training or conditioning practices such as, but not limited to, creance (tethered) flying, lures, balloons, or kites in training or conditioning captive-bred progeny of raptors you hold under your permit.


(1) Until the raptors are 1 year old, you may use captive-bred offspring in actual hunting as a means of training them. To do so, you will not need to transfer them to another permit type. You may not use them in hunting after their first year if they are held under your captive propagation permit.


(2) Any hybrid raptor that you fly free must have at least two attached radio transmitters to help you to locate the bird.


(3) You may not hunt at any time with raptors you use in propagation.


(q) Hacking of propagation raptors. “Hacking” (temporary release to the wild) is an approved method to condition raptors. You may hack a raptor that you produce under your propagation permit.


(1) You may need permission from your State or tribal wildlife agency to hack a raptor you possess under your propagation permit. Check with your State or tribal agency that regulates falconry to determine if hacking is allowed.


(2) Any hybrid you hack must have two attached functioning radio transmitters during hacking.


(3) You may not hack a raptor near a nesting area of a federally threatened or endangered bird species or in any other location where the raptor is likely to harm a federally listed threatened or endangered animal species that might be disturbed or taken by your falconry raptor. You should contact your State or territorial wildlife agency before hacking a falconry raptor to ensure that this does not occur. Contact the Fish and Wildlife Service office in your State or territory for information on federally listed species.


(r) Transfer of propagation raptors and offspring if a permittee dies. A surviving spouse, executor, administrator, or other legal representative of a deceased raptor propagation permittee may transfer any bird, eggs, or semen held by the deceased permittee to another authorized permittee within 90 days of the death of the falconry permittee. After 90 days, disposition of a bird held under the permit is at our discretion.


(s) Records of captive propagation efforts. You must maintain complete and accurate records of all operations, including the following, for at least 5 years after the expiration of your permit. However, you may want to retain your records for a longer time if you want to get another migratory bird permit, a Convention on International Trade in Endangered Species of Wild Fauna and Flora permit, or a Wild Bird Conservation Act permit.


(1) The acquisition of raptors, eggs, or semen you acquired from the wild or that were transferred to you.


(i) What you acquired, and the species, sex, age, and band number of each bird you acquired.


(ii) Whether you acquired the raptor, egg, or semen from the wild or you purchased it or it was transferred to you.


(2) The disposition of raptors, eggs, or semen you sell or transfer to another permittee. The information should include the band number of raptors you sell or transfer.


(t) Annual report. You must submit a completed FWS Form 3-202-8 to your Regional Migratory Bird Permit office by January 31 each year for January 1 through December 31 of the preceding year.


(u) Endangered or threatened species. If you wish to propagate endangered or threatened species, you must have at least 2 years of experience handling raptors in a propagation program or programs. You may also need an endangered species permit to propagate threatened or endangered raptors. See §§ 17.21 and 17.22 of this chapter for permit requirements to propagate threatened or endangered raptors.


(v) Applying for a Federal raptor propagation permit. Using FWS Form 3-200-12, you must submit your application for a raptor propagation permit to the appropriate Regional Director, to the attention of the Migratory Bird Permit Office. You can find addresses for the Regional Directors in 50 CFR 2.2. Your application must contain the general information and the certification required in § 13.12(a) of this chapter, a copy of your State permit authorizing raptor propagation, if your State requires one, and a description (including dimensions), drawings, and photographs of the facilities and equipment you will use.


(w) Criteria for issuing a permit. When we receive a completed application, we will decide whether we should issue a permit to you. We will consider the general criteria in part 13 of this chapter and the following factors:


(1) You must be at least 18 years old and have at least 2 full years of experience handling raptors.


(2) You must have a propagation permit or other authorization for raptor propagation from your State or Tribe, if your State or Tribe requires it.


(3) Your raptor propagation facilities must be adequate for the number and species of raptors to be held under your permit.


(x) Updating a raptor propagation permit after a move. If you move within your State or get a new mailing address, you must notify us within 30 days (see § 13.23(c) of this chapter). If you move to a new State, within 30 days you must inform both your former and your new (if applicable) Migratory Bird Permit Offices of your address change. If you have new propagation facilities, you must provide information, pictures, and diagrams of them, and they may be inspected in accordance with Federal or State requirements. Thereafter, no mandatory inspections of the facilities will continue.


(y) Permit expiration. Your Federal permit may be valid for up to 5 years from when it is issued or renewed. It will expire on the same day as your State permit, unless your State permit is for a period longer than 5 years, or unless we amend, suspend, or revoke it.


[76 FR 29667, May 23, 2011]


§ 21.31 Rehabilitation permits.

(a) What is the permit requirement? Except as provided in § 21.12, a rehabilitation permit is required to take, temporarily possess, or transport any migratory bird for rehabilitation purposes. However, any person who finds a sick, injured, or orphaned migratory bird may, without a permit, take possession of the bird in order to immediately transport it to a permitted rehabilitator.


(b) What are the general permit provisions? (1) The permit authorizes you to:


(i) Take from the wild or receive from another person sick, injured, or orphaned migratory birds and to possess them and provide rehabilitative care for them for up to 180 days;


(ii) Transport such birds to a suitable habitat for release, to another permitted rehabilitator’s facilities, or to a veterinarian;


(iii) Transfer, release, or euthanize such birds;


(iv) Transfer or otherwise dispose of dead specimens; and


(v) Receive, stabilize, and transfer within 48 hours types of migratory bird species not authorized by your permit, in cases of emergency. If a rehabilitator authorized to care for the bird is not available within that timeframe, you must contact the issuing office for authorization to retain the bird until it can be transferred.


(2) The permit does not authorize the use of migratory birds for educational purposes.


(c) How do I apply for a migratory bird rehabilitation permit? You must apply to the appropriate Regional Director – Attention Migratory Bird Permit Office. You can find addresses for the appropriate Regional Directors in § 2.2 of subchapter A of this chapter. Your application package must consist of the following:


(1) A completed application (Form 3-200-10b);


(2) A copy of your State rehabilitation permit, license, or other authorization, if one is required in your State; and


(3) A check or money order made payable to the “U.S. Fish and Wildlife Service” in the amount of the application fee for permits issued under this section listed in § 13.11 of this chapter.


(d) What criteria will the Service consider before issuing a permit? (1) Upon receiving an application completed in accordance with paragraph (c) of this section, the Regional Director will decide whether to issue you a permit based on the general criteria of § 13.21 of this chapter and whether you meet the following requirements:


(i) You must be at least 18 years of age with at least 100 hours of hands-on experience, gained over the course of at least 1 whole year, rehabilitating the types of migratory birds you intend to rehabilitate (e.g., waterbirds, raptors), or comparable experience. Up to 20 hours of the 100-hour time requirement may be fulfilled by participation in migratory bird rehabilitation seminars and courses.


(ii) Your facilities must be adequate to properly care for the type(s) of migratory bird species you intend to rehabilitate, or you must have a working relationship with a person or organization with such facilities.


(iii) You must have an agreement with a licensed veterinarian to provide medical care for the birds you intend to rehabilitate, unless you are a licensed veterinarian.


(iv) You must have a State permit, license, or other authorization to rehabilitate migratory birds if such authorization required by your State.


(2) In issuing a permit, the Regional Director may place restrictions on the types of migratory bird species you are authorized to rehabilitate, based on your experience and facilities as well as on the specific physical requirements and behavioral traits of particular species.


(e) What are the standard conditions for this permit? In addition to the general permit conditions set forth in part 13 of this chapter, rehabilitation permits are subject to the following conditions:


(1) Facilities. You must conduct the activities authorized by this permit in appropriate facilities that are approved and identified on the face of your permit. In evaluating whether caging dimensions are adequate, the Service will use as a guideline the standards developed by the National Wildlife Rehabilitators Association and the International Wildlife Rehabilitation Council (Minimum Standards for Wildlife Rehabilitation, 2000).
1
The Regional Migratory Bird Permit Office will authorize variation from the standards where doing so is reasonable and necessary to accommodate a particular rehabilitator’s circumstances, unless a determination is made that such variation will jeopardize migratory birds. However, except as provided by paragraph (f)(2)(i) of this section, all facilities must adhere to the following criteria:




1 Copies may be obtained by contacting either the National Wildlife Rehabilitators Association: 14 North 7th Avenue, St. Cloud MN 56303-4766, http://www.nwawildlife.org/default.asp; or the International Wildlife Rehabilitation Council: 829 Bancroft Way, Berkeley, CA 94710, http://www.iwrc-online.org.


(i) Rehabilitation facilities for migratory birds must be secure and provide protection from predators, domestic animals, undue human disturbance, sun, wind, and inclement weather.


(ii) Caging must be made of a material that will not entangle or cause injury to the type of birds that will be housed within.


(iii) Enclosures must be kept clean, well-ventilated, and hygienic.


(iv) Birds must not be overcrowded, and must be provided enough perches, if applicable.


(v) Birds must be housed only with compatible migratory bird species.


(vi) Birds may not be displayed to the public unless you use video equipment, barriers, or other methods to reduce noise and exposure to humans to levels the birds would normally encounter in their habitat. You may not use any equipment for this purpose that causes stress or harm, or impedes the rehabilitation of any bird.


(2) Dietary requirements. You must provide the birds in your care with a diet that is appropriate and nutritionally approximates the natural diet consumed by the species in the wild, with consideration for the age and health of the individual bird.


(3) Subpermittees. Except as provided by paragraph (f)(2)(ii) of this section, anyone who will be performing activities that require permit authorization under paragraph (b)(1) of this section when you or a subpermittee are not present, including any individual who transports birds to or from your facility on a regular basis, must either possess a Federal rehabilitation permit or be authorized as your subpermittee by being named in writing to your issuing Migratory Bird Permit Office. This does not apply to General Falconers or Master Falconers, who may assist with conditioning raptors for release without being your subpermittee. If you have a falconer assist in conditioning a rehabilitated raptor for release, you must provide the falconer with a letter or form that identifies the bird and explains that the falconer is assisting in rehabilitation of the raptor.


(i) Your subpermittees must be at least 18 years of age and possess sufficient experience to tend the species in their care.


(ii) Your subpermittees who are authorized to care for migratory birds at a site other than your facility must have facilities adequate to house the species in their care, based on the criteria of paragraph (e)(1) of this section. All such facilities except those of a falconer assisting in conditioning raptors for release must be approved by the issuing office.


(iii) As the primary permittee, you are legally responsible for ensuring that your subpermittees, staff, and volunteers adhere to the terms of your permit when conducting migratory bird rehabilitation activities.


(4) Disposition of birds under your care. (i) You must take every precaution to avoid imprinting or habituating birds in your care to humans. If a bird becomes imprinted to humans while under your care, you will be required to transfer the bird as directed by the issuing office.


(ii) After a bird is rehabilitated to a condition suitable for release to the wild, you must release it to suitable habitat as soon as seasonal conditions allow, except that you may transfer a rehabilitated wild raptor to a holder of a State, tribal, or territorial falconry permit if the permit holder is authorized to hold the species for use in falconry. The transfer may need the approval of your State, tribe, or territory. The falconer must complete a Form 3-186A reporting the transfer.


(A) You may not retain migratory birds longer than 180 days without additional authorization from your Regional Migratory Bird Permit Office. If the appropriate season for release is outside the 180-day timeframe, you must seek authorization from your Fish and Wildlife Service Regional Migratory Bird Permit Office to possess the bird until the appropriate season.


(B) Before releasing a threatened or endangered migratory bird, you must comply with any requirements for the release from your Fish and Wildlife Service Regional Migratory Bird Permit Office.


(iii) You must euthanize any bird that cannot feed itself, perch upright, or ambulate without inflicting additional injuries to itself where medical and/or rehabilitative care will not reverse such conditions. You must euthanize any bird that is completely blind, and any bird that has sustained injuries that would require amputation of a leg, a foot, or a wing at the elbow or above (humero-ulnar joint) rather than performing such surgery, unless:


(A) A licensed veterinarian submits a written recommendation that the bird should be kept alive, including an analysis of why the bird is not expected to experience the injuries and/or ailments that typically occur in birds with these injuries and a commitment (from the veterinarian) to provide medical care for the bird for the duration of its life, including complete examinations at least once a year;


(B) A placement is available for the bird with a person or facility authorized to possess it, where it will receive the veterinary care described in paragraph (e)(4)(iii)(A) of this section; and


(C) The issuing office specifically authorizes continued possession, medical treatment, and rehabilitative care of the bird.


(iv) You must obtain authorization from your issuing Migratory Bird Permit Office before euthanizing endangered and threatened migratory bird species. In rare cases, the Service may designate a disposition other than euthanasia for those birds. If Service personnel are not available, you may euthanize endangered and threatened migratory birds without Service authorization when prompt euthanasia is warranted by humane consideration for the welfare of the bird.


(v) You may place nonreleasable live birds that are suitable for use in educational programs, foster parenting, research projects, or other permitted activities with persons permitted or otherwise authorized to possess such birds, with prior approval from your issuing Migratory Bird Permit Office.


(vi)(A) You may donate dead birds and parts thereof, except threatened and endangered species, and bald and golden eagles, to persons authorized by permit to possess migratory bird specimens or exempted from permit requirements under § 21.12.


(B) You must obtain approval from your issuing office before disposing of or transferring any live or dead endangered or threatened migratory bird specimen, parts, or feathers.


(C) You must send all dead bald and golden eagles, and their parts and feathers to: National Eagle Repository, Building 128, Rocky Mountain Arsenal, Commerce City, CO 80022. If your State requires you to notify State wildlife officers of a dead bald or golden eagle before sending the eagle to the Repository you must comply with State regulations. States may assume temporary possession of the carcasses for purposes of necropsy.


(D) Unless specifically required to do otherwise by the Service, you must promptly destroy all other dead specimens by such means as are necessary to prevent any exposure of the specimens to animals in the wild.


(vii) With authorization from your issuing Migratory Bird Permit Office, you may hold a nonreleasable bird longer than 180 days for the purpose of fostering juveniles during their rehabilitation. You may also use birds you possess under an educational permit to foster juveniles.


(viii) You may possess a reasonable number of feathers for imping purposes, based on the numbers and species of birds for which you regularly provide care.


(ix) You may draw blood and take other medical samples for purposes of the diagnosis and recovery of birds under your care, or for transfer to authorized facilities conducting research pertaining to a contagious disease or other public health hazard.


(x) You may conduct necropsies on dead specimens in your possession, except that you must obtain approval from your Regional Migratory Bird Permit Office before conducting necropsies on threatened or endangered species.


(xi) This permit does not confer ownership of any migratory bird. All birds held under this permit remain under the stewardship of the U.S. Fish and Wildlife Service.


(5) Notification to the U.S. Fish and Wildlife Service. (i) You must notify your issuing Migratory Bird Permit Office within 24 hours of acquiring a threatened or endangered migratory bird species, or bald or golden eagle, whether live or dead. You may be required to transfer these birds to another facility designated by the Service.


(ii) You must immediately notify the local U.S. Fish and Wildlife Service Law Enforcement Office if you have reason to believe a bird has been poisoned, electrocuted, shot, or otherwise subjected to criminal activity. Contact information for your local Service Law Enforcement office is listed on your permit, or you can obtain it on the Internet at http://offices.fws.gov.


(iii) If the sickness, injury, or death of any bird is due or likely due to avian virus, or other contagious disease or public health hazard, you must notify and comply with the instructions given by the State or local authority that is responsible for tracking the suspected disease or hazard in your location, if that agency is currently collecting such information from the public.


(6) You must maintain a working relationship with a licensed veterinarian. If your working relationship with your original cooperating veterinarian is dissolved, you must establish an agreement within 30 days with another licensed veterinarian to provide medical services to the birds in your care, and furnish a copy of this agreement to the issuing office.


(7) Recordkeeping. You must maintain complete and accurate records of all migratory birds that you receive, including for each bird the date received, type of injury or illness, disposition, and date of disposition. You must retain these records for 5 years following the end of the calendar year covered by the records.


(8) Annual report. You must submit an annual report that includes the information required by paragraph (e)(7) for the preceding calendar year to your issuing Migratory Bird Permit Office by the date required on your permit. You may complete Service Form 3-202-4, or submit your annual report from a database you maintain, provided your report contains all, and only, the information required by Form 3-202-4.


(9) At the discretion of the Regional Director, we may stipulate on the face of your permit additional conditions compatible with the permit conditions set forth in this section, to place limits on numbers and/or types of birds you may possess under your permit, to stipulate authorized location(s) for your rehabilitation activities, or otherwise specify permitted activities, based on your experience and facilities.


(f) How does this permit apply to oil and hazardous waste spills? Prior to entering the location of an oil or hazardous material spill, you must obtain authorization from the U.S. Fish and Wildlife Service Field Response Coordinator or other designated Service representative and obtain permission from the On-Scene Coordinator. All activities within the location of the spill are subject to the authority of the On-Scene Coordinator. The U.S. Fish and Wildlife Service is responsible for the disposition of all migratory birds, dead or alive.


(1) Permit provisions in oil or hazardous material spills. (i) In addition to the rehabilitation permit provisions set forth in paragraph (b) of this section, when under the authority of the designated U.S. Fish and Wildlife Service representative this permit further authorizes you to temporarily possess healthy, unaffected birds for the purpose of removing them from imminent danger.


(ii) This permit does not authorize salvage of dead migratory birds. When dead migratory birds are discovered, a Service law enforcement officer must be notified immediately in order to coordinate the handling and collection of evidence. Contact information for your local Service Law Enforcement office is listed on your permit and on the Internet at http://offices.fws.gov. The designated Service representative will have direct control and responsibility over all live migratory birds, and will coordinate the collection, storage, and handling of any dead migratory birds with the Service’s Division of Law Enforcement.


(iii) You must notify your issuing Migratory Bird Permit Office of any migratory birds in your possession within 24 hours of removing such birds from the area.


(2) Conditions specific to oil and hazardous waste spills – (i) Facilities. Facilities used at the scene of oil or hazardous waste spills may be temporary and/or mobile, and may provide less space and protection from noise and disturbance than facilities authorized under paragraph (e)(1) of this section. Such facilities should conform as closely as possible with the facility specifications contained in the Service policy titled Best Practices for Migratory Bird Care During Oil Spill Response.
2




2 You can obtain copies of this document by writing to the Division of Environmental Review at the address provided at 50 CFR 2.1(b).


(ii) Subpermittees. In cases of oil and hazardous waste spills, persons who assist with cleaning or treating migratory birds at the on-scene facility will not be required to have a rehabilitation permit or be a subpermittee; however, volunteers must be trained in rescue protocol for migratory birds affected by oil and hazardous waste spills. A permit (or subpermittee designation) is required to perform extended rehabilitation of such birds, after initial cleaning and treating, at a subsequent location.


(g) Will I also need a permit from the State in which I live? If your State requires a license, permit, or other authorization to rehabilitate migratory birds, your Federal migratory bird rehabilitation permit will not be valid if you do not also possess and adhere to the terms of the required State authorization, in addition to the Federal permit. Nothing in this section prevents a State from making and enforcing laws or regulations consistent with this section that are more restrictive or give further protection to migratory birds.


(h) How long is a migratory bird rehabilitation permit valid? Your rehabilitation permit will expire on the date designated on the face of the permit unless amended or revoked. No rehabilitation permit will have a term exceeding 5 years.


[68 FR 61137, Oct. 27, 2003, as amended at 73 FR 59477, Oct. 8, 2008; 75 FR 29918, May 28, 2010; 79 FR 43965, July 29, 2014]


Subpart D – Control of Depredating and Otherwise Injurious Birds

§ 21.41 Depredation permits.

(a) Permit requirement. Except as provided in §§ 21.43, 21.44, and 21.46, a depredation permit is required before any person may take, possess, or transport migratory birds for depredation control purposes. No permit is required merely to scare or herd depredating migratory birds other than endangered or threatened species or bald or golden eagles.


(b) Application procedures. Submit application for depredation permits to the appropriate Regional Director (Attention: Migratory bird permit office). You can find addresses for the Regional Directors in 50 CFR 2.2. Each application must contain the general information and certification required in § 13.12(a) of this subchapter, and the following additional information:


(1) A description of the area where depredations are occurring;


(2) The nature of the crops or other interests being injured;


(3) The extent of such injury; and


(4) The particular species of migratory birds committing the injury.


(c) Additional permit conditions. Inaddition to the general conditions set forth in part 13 of this subchapter B, depredation permits shall be subject to requires, in this section:


(1) Permittees may not kill migratory birds unless specifically authorized on the permit.


(2) Unless otherwise specifically authorized, when permittees are authorized to kill migratory birds they may do so only with a shotgun not larger than No. 10 gauge fired from the shoulder, and only on or over the threatened area or area described on the permit.


(3) Permittees may not use blinds, pits, or other means of concealment, decoys, duck calls, or other devices to lure or entice birds within gun range.


(4) All migratory birds killed shall be retrieved by the permittee and turned over to a Bureau representative or his designee for disposition to charitable or other worthy institutions for use as food, or otherwise disposed of as provided by law.


(5) Only persons named on the permit are authorized to act as agents of the permittee under authority of the permit.


(d) Tenure of permits. The tenure of depredation permits shall be limited to the dates which appear on its face, but in no case shall be longer than one year.


[39 FR 1178, Jan. 4, 1974, as amended at 42 FR 17122, Mar. 31, 1977; 63 FR 52637, Oct. 1, 1998; 80 FR 15691, Mar. 25, 2015]


§ 21.42 [Reserved]

§ 21.43 Depredation order for blackbirds, cowbirds, crows, grackles, and magpies.

(a) Species covered.


Blackbirds
Cowbirds
Crows
Grackles
Magpies
Brewer’s (Euphagus cyanocephalus)Bronzed (Molothrus aeneus)American (Corvus brachyrhynchos)Boat-tailed (Quiscalus major)Black-billed (Pica hudsonia)
Red-winged (Agelaius phoeniceus)Brown-headed (Molothrus ater)Fish (Corvus ossifragus)Common (Quiscalus quiscula)
Yellow-headed (Xanthocephalus xanthocephalus)Shiny (Molothrus bonariensis)Northwestern (Corvus caurinus)Great-tailed (Quiscalus mexicanus)
Greater Antillean (Quiscalus niger)

(b) Conditions under which control is allowed by private citizens. You do not need a Federal permit to control the species listed in paragraph (a) of this section in the following circumstances:


(1) Where they are causing serious injuries to agricultural or horticultural crops or to livestock feed;


(2) When they cause a health hazard or structural property damage;


(3) To protect a species recognized by the Federal Government as an endangered, threatened, or candidate species in any county in which it occurs, as shown in the Service’s Environmental Conservation Online System (http://ecos.fws.gov);


(4) To protect a species recognized by the Federal Government as an endangered or threatened species in designated critical habitat for the species; or


(5) To protect a species recognized by a State or Tribe as endangered, threatened, candidate, or of special concern if the control takes place within that State or on the lands of that tribe, respectively.


(6) Each calendar year, you must attempt to control depredation by species listed under this depredation order using nonlethal methods before you may use lethal control. Nonlethal control methods can include such measures as netting and flagging, the use of trained raptors, propane cannons, and recordings.


(c) Conditions under which control is allowed by Federal, State, and Tribal employees. You do not need a Federal permit to control the species listed in paragraph (a) of this section in the following circumstances:


(1) Where they are causing serious injuries to agricultural or horticultural crops or to livestock feed;


(2) When they cause a health hazard or structural property damage; or


(3) To protect a species recognized by the Federal Government, a State, or a Tribe as an endangered, threatened, or candidate, species, or a species of special concern, including critical habitat for any listed species.


(4) Each calendar year, you must attempt to control depredation by species listed under this depredation order using nonlethal methods before you may use lethal control. Nonlethal control methods can include such measures as netting and flagging, the use of trained raptors, propane cannons, and recordings. However, this requirement does not apply to Federal, State, or Tribal employees conducting brown-headed cowbird trapping to protect a species recognized by the Federal Government, a State, or a Tribe as endangered, threatened, candidate, or of special concern.


(d) Ammunition. In most cases, if you use a firearm to kill migratory birds under the provisions of this section, you must use nontoxic shot or nontoxic bullets to do so. See § 20.21(j) of this chapter for a listing of approved nontoxic shot types. However, this prohibition does not apply if you use an air rifle or an air pistol for control of depredating birds.


(e) Access to control efforts. If you exercise any of the privileges granted by this section, you must allow any Federal, State, tribal, or territorial wildlife law enforcement officer unrestricted access at all reasonable times (including during actual operations) over the premises on which you are conducting the control. You must furnish the officer whatever information he or she may require about your control operations.


(f) Trapping conditions. You must comply with the following conditions if you attempt to trap any species under this order.


(1) You may possess, transport, and use a lure bird or birds of the species listed in paragraph (a) that you wish to trap.


(2) You must check each trap at least once every day it is deployed.


(3) At temperatures above 80 °Fahrenheit, the traps must provide shade for captured birds.


(4) Each trap must contain adequate food and water.


(5) You must promptly release all healthy nontarget birds that you capture.


(6) If a federally permitted wildlife rehabilitator is within 1 hour or less of your capture efforts, you must send injured or debilitated nontarget federally protected migratory birds to the rehabilitator. If no rehabilitator is closer than 1 hour away, you may euthanize an injured or debilitated bird of a nontarget species unless the species is federally listed as an endangered, threatened, or candidate species, in which case you must deliver it to a rehabilitator and report the take to the nearest U.S. Fish and Wildlife Service Field Office or Special Agent.


(7) You must report captures of nontarget federally protected migratory birds in your annual report (see paragraph (i) of this section).


(g) Euthanasia. Captured birds and wounded or injured birds of the species listed in paragraph (a) may only be killed by carbon monoxide or carbon dioxide inhalation, or by cervical dislocation performed by well-trained personnel who are regularly monitored to ensure proficiency.


(h) Disposition of birds and parts. You may not sell, or offer to sell, any bird, or any part thereof, killed under this section, but you may possess, transport, and otherwise dispose of the bird or its parts, including transferring them to authorized research or educational institutions. If not transferred, the bird and its parts must either be burned, or buried at least 1 mile from the nesting area of any migratory bird species recognized by the Federal Government, the State, or a Tribe as an endangered or threatened species.


(i) Annual report. Any person, business, organization, or government official acting under this depredation order must provide an annual report using FWS Form 3-202-21-2143 to the appropriate Regional Migratory Bird Permit Office. The addresses for the Regional Migratory Bird Permit Offices are provided at 50 CFR 2.2, and are on the form. The report is due by January 31st of the following year and must include the information requested on the form.


(j) Compliance with other laws. You may trap and kill birds under this order only in a way that complies with all State, tribal, or territorial laws or regulations. You must have any State, tribal, or territorial permit required to conduct the activity.


(k) Information collection. The Office of Management and Budget has approved the information collection requirements associated with this depredation order and assigned OMB Control No. 1018-0146. 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. You may send comments on the information collection requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[79 FR 65601, Nov. 5, 2014]


§ 21.44 Depredation order for horned larks, house finches, and white-crowned sparrows in California.

Horned larks (Eremophila alpestris), house finches (Carpodacus mexicanus), and white-crowned sparrows (Zonotrichia leucophrys) may be taken in Fresno, Merced, Napa, and Sonoma Counties in California if they are depredating on agricultural or horticultural crops. Take of birds under this order must be done under the supervision of the county agriculture commissioner. You do not need a Federal permit for this depredation control as long as you meet the conditions below, but a depredation permit (see § 21.41 in this subpart) is required for take of other migratory bird species, or for take of horned larks or white-crowned sparrows from May 1 through October 31.


(a) When is take allowed under this depredation order?


(1) Horned larks and white-crowned sparrows may be controlled from November 1 through April 30.


(2) House finches may be controlled at any time.


(b) Use of nonlethal control. Each season, before lethal control may be undertaken, the landowner must attempt to use nonlethal control of migratory bird depredation as recommended by the U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services. The county agriculture commissioner must confirm that nonlethal measures have been undertaken to control or eliminate the problem prior to the landowner using lethal control.


(c) Ammunition. Except when using an air rifle or an air pistol, if firearms are used to kill migratory birds under the provisions of this regulation, the shooter must use nontoxic shot or nontoxic bullets to do so. See § 20.21(j) of this chapter for a listing of approved nontoxic shot types.


(d) Disposition of carcasses. Specimens useful for scientific purposes may be transferred to any entity authorized to possess them. If not transferred, all carcasses of birds killed under this order must be buried or otherwise destroyed. None of the above migratory birds killed, or the parts thereof, or the plumage of such birds, may be sold or removed from the area where killed.


(e) Annual report. Any county official acting under this depredation order must provide an annual report to the Regional Migratory Bird Permit Office using FWS Form 3-202-20-2144. The address for the Regional Migratory Bird Permit Office is in § 2.2 of subchapter A of this chapter, and is on the form. The report is due by January 31st of the year after control activities are undertaken.


[78 FR 65581, Nov. 1, 2013]


§ 21.45 [Reserved]

§ 21.46 Depredation order for depredating California scrub jays and Steller’s jays in Washington and Oregon.

Landowners, sharecroppers, tenants, or their employees or agents actually engaged in the production of nut crops in Washington and Oregon may, without a permit, take California scrub jays (Aphelocoma californica) and Steller’s jays (Cyanocitta stelleri) when found committing or about to commit serious depredations to nut crops on the premises owned or occupied by such persons: Provided:


(a) That California scrub jays and Steller’s jays may only be taken pursuant to this section between August 1 and December 1 in any year, in the Washington counties of Clark, Cowlitz, and Lewis; and the Oregon counties of Benton, Clackamas, Lane, Linn, Marion, Multnomah, Polk, Washington, and Yamhill.


(b) That California scrub jays and Steller’s jays taken pursuant to this section shall not be transported or sold or offered for sale except that, such transportation within the area, as may be necessary to bury or otherwise destroy the carcasses of such birds is permitted: Provided, That the Director of the State agricultural department, college, or other public institution may requisition such California scrub jays and Steller’s jays killed as may be needed for scientific investigations.


(c) That such birds may be taken only by trapping or shooting and on areas where serious depredations are being or are about to be committed.


(d) That any person exercising any of the privileges granted by this section shall permit at all reasonable times, including during actual operations, any Federal or State game or deputy game agent, warden, protector, or other law enforcement officer free and unrestricted access over the premises on which such operations have been or are being conducted; and shall furnish promptly to such officer whatever information he may require, concerning said operations.


(e) That nothing in this section shall be construed to authorize the killing of such migratory birds contrary to any State laws or regulations; and that none of the privileges granted under this section shall be exercised unless the person possesses whatever permit as may be required for such activities by the States of Washington and Oregon.


(f) That any person authorized by this section to act under this depredation order must provide an annual report of take during the calendar year for each species by January 31st of the following year. The report must include the number of birds taken for each species, method of take, month(s) in which they were taken, county(ies) and State(s) in which they were taken, purpose of take, and disposition. Submit annual reports to the Pacific Region Migratory Bird Permit Office in Portland, Oregon, at the address shown at 50 CFR 2.2.


[39 FR 31326, Aug. 28, 1974, as amended at 84 FR 45924, Sept. 3, 2019]


§§ 21.47-21.48 [Reserved]

§ 21.49 Control order for resident Canada geese at airports and military airfields.

(a) Which Canada geese are covered by this order? This regulation addresses the control and management of resident Canada geese, as defined in § 21.3.


(b) What is the control order for resident Canada geese at airports, and what is its purpose? The airport control order authorizes managers at commercial, public, and private airports (airports) (and their employees or their agents) and military air operation facilities (military airfields) (and their employees or their agents) to establish and implement a control and management program when necessary to resolve or prevent threats to public safety from resident Canada geese. Control and management activities include indirect and/or direct control strategies such as trapping and relocation, nest and egg destruction, gosling and adult trapping and culling programs, or other lethal and non-lethal control strategies.


(c) Who may participate in the program? To be designated as an airport that is authorized to participate in this program, an airport must be part of the National Plan of Integrated Airport Systems and have received Federal grant-in-aid assistance, or a military airfield, meaning an airfield or air station that is under the jurisdiction, custody, or control of the Secretary of a military department. Only airports and military airfields in the lower 48 States and the District of Columbia are eligible to conduct and implement the various resident Canada goose control and management program components.


(d) What are the restrictions of the control order for resident Canada geese at airports and military airfields? The airport control order for resident Canada geese is subject to the following restrictions:


(1) Airports and military airfields should use nonlethal goose management tools to the extent they deem appropriate. To minimize lethal take, airports and military airfields should follow this procedure:


(i) Assess the problem to determine its extent or magnitude, its impact on current operations, and the appropriate control method to be used.


(ii) Base control methods on sound biological, environmental, social, and cultural factors.


(iii) Formulate appropriate methods into a control strategy that uses several control techniques rather than relying on a single method.


(iv) Implement all appropriate nonlethal management techniques (such as harassment and habitat modification) in conjunction with take authorized under this order.


(2)(i) Methods of take for the control of resident Canada geese are at the airport’s and military airfield’s discretion from among the following:


(A) Egg oiling,


(B) Egg and nest destruction,


(C) Shooting,


(D) Lethal and live traps,


(E) Nets,


(F) Registered animal drugs, pesticides, and repellants,


(G) Cervical dislocation, and


(H) CO2 asphyxiation.


(ii) Birds caught live may be euthanized or transported and relocated to another site approved by the State or Tribal wildlife agency, if required.


(iii) All techniques used must be in accordance with other Federal, State, and local laws, and their use must comply with any labeling restrictions.


(iv) Persons using shotguns must use nontoxic shot, as listed in § 20.21(j) of this subchapter.


(v) Persons using egg oiling must use 100 percent corn oil, a substance exempted from regulation by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.


(3) Airports and military airfields may conduct management and control activities, involving the take of resident Canada geese, under this section between April 1 and September 15. The destruction of resident Canada goose nests and eggs may take place at any time of year.


(4) Airports and military airfields and their employees and agents may possess, transport, and otherwise dispose of resident Canada geese taken under this section. Disposal of birds taken under this order may be by donation to public museums or public institutions for scientific or educational purposes, processing for human consumption and subsequent distribution free of charge to charitable organizations, or burial or incineration. Airports/military airfields, their employees, and designated agents may not sell, offer for sale, barter, or ship for the purpose of sale or barter any resident Canada geese taken under this section, nor their plumage or eggs. Any specimens needed for scientific purposes as determined by the Regional Director must not be destroyed, and information on birds carrying metal leg bands must be submitted to the Bird Banding Laboratory by means of a toll-free telephone number at 1-800-327-BAND (or 2263).


(5) Resident Canada geese may be taken only within the airport, or the military base on which a military airfield is located, or within a 3-mile radius of the outer boundary of such a facility. Airports and military airfields or their agents must first obtain all necessary authorizations from landowners for all management activities conducted outside the airport or military airfield’s boundaries and be in compliance with all State and local laws and regulations.


(6) Nothing in this section authorizes the killing of resident Canada geese or destruction of their nests and eggs contrary to the laws or regulations of any State or Tribe, and none of the privileges of this section may be exercised unless the airport or military airfield possesses the appropriate State or Tribal authorization or other permits required by the State or Tribe. Moreover, this section does not authorize the killing of any migratory bird species or destruction of their nest or eggs other than resident Canada geese.


(7) Authorized airports and military airfields, and their employees and agents operating under the provisions of this section may not use decoys, calls, or other devices to lure birds within gun range.


(8) Airports and military airfields exercising the privileges granted by this section must submit an annual report summarizing activities, including the date and numbers and location of birds, nests, and eggs taken, by December 31 of each year to the Regional Migratory Bird Permit Office listed in § 2.2 of this subchapter.


(9) Nothing in this section applies to any Federal land without written permission of the Federal agency with jurisdiction.


(10) Airports and military airfields may not undertake any actions under this section if the activities adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this order must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, airports and military airfields must:


(i) Follow the Federal-State Contingency Plan for the whooping crane;


(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi sandhill crane nest;


(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management guidelines for all management activities;


(iv) Contact the Arizona Ecological Services Office (for the Colorado River and Arizona sites) or the Carlsbad Fish and Wildlife Office (for Salton Sea sites) if control activities are proposed in or around occupied habitats (cattail or cattail bulrush marshes) to discuss the proposed activity and ensure that implementation will not adversely affect clapper rails or their habitats; and


(v) In California, any control activities of resident Canada geese in areas used by the following species listed under the Endangered Species Act must be done in coordination with the appropriate local FWS field office and in accordance with standard local operating procedures for avoiding adverse effects to the species or its critical habitat:


(A) Birds: Light-footed clapper rail, California clapper rail, Yuma clapper rail, California least tern, southwestern willow flycatcher, least Bell’s vireo, western snowy plover, California gnatcatcher.


(B) Amphibians: California red-legged frog and California tiger salamander.


(C) Insects: Valley elderberry longhorn beetle and delta green ground beetle.


(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp, longhorn fairy shrimp, vernal pool tadpole shrimp, San Diego fairy shrimp, and Riverside fairy shrimp.


(E) Plants: Butte County meadowfoam, large-flowered wooly meadowfoam, Cook’s lomatium, Contra Costa goldfields, Hoover’s spurge, fleshy owl’s clover, Colusa grass, hairy Orcutt grass, Solano grass, Greene’s tuctoria, Sacramento Valley Orcutt grass, San Joaquin Valley Orcutt grass, slender Orcutt grass, California Orcutt grass, spreading navarretia, and San Jacinto Valley crownscale.


(e) Can the control order be suspended? We reserve the right to suspend or revoke an airport’s or military airfield’s authority under this control order if we find that the terms and conditions specified in the control order have not been adhered to by that airport or military airfield. Final decisions to revoke authority will be made by the appropriate Regional Director. The criteria and procedures for suspension, revocation, reconsideration, and appeal are outlined in §§ 13.27 through 13.29 of this subchapter. For the purposes of this section, “issuing officer” means the Regional Director and “permit” means the authority to act under this control order. For purposes of § 13.29(e), appeals must be made to the Director.


(f) Has the Office of Management and Budget (OMB) approved the information collection requirements of the control order? OMB has approved the information collection and recordkeeping requirements of the control order under OMB control number 1018-0133. 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. You may send comments on the information collection and recordkeeping requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[71 FR 45986, Aug. 10, 2006, as amended at 72 FR 46408, Aug. 20, 2007; 79 FR 43966, July 29, 2014; 84 FR 28773, June 20, 2019]


§ 21.50 Depredation order for resident Canada geese nests and eggs.

(a) Which Canada geese are covered by this order? This regulation addresses the control and management of resident Canada geese, as defined in § 21.3.


(b) What is the depredation order for resident Canada geese nests and eggs, and what is its purpose? The nest and egg depredation order for resident Canada geese authorizes private landowners and managers of public lands (landowners); homeowners’ associations; and village, town, municipality, and county governments (local governments); and the employees or agents of any of these persons or entities to destroy resident Canada goose nests and eggs on property under their jurisdiction when necessary to resolve or prevent injury to people, property, agricultural crops, or other interests.


(c) Who may participate in the depredation order? Only landowners, homeowners’ associations, and local governments (and their employees or their agents) in the lower 48 States and the District of Columbia are eligible to implement the resident Canada goose nest and egg depredation order.


(d) What are the restrictions of the depredation order for resident Canada goose nests and eggs? The resident Canada goose nest and egg depredation order is subject to the following restrictions:


(1) Before any management actions can be taken, landowners, homeowners’ associations, and local governments must register with the Service at https://epermits.fws.gov/eRCGR. Landowners, homeowners’ associations, and local governments (collectively termed “registrants”) must also register each employee or agent working on their behalf. Once registered, registrants and agents will be authorized to act under the depredation order.


(2) Registrants authorized to operate under the depredation order must use nonlethal goose management techniques to the extent they deem appropriate in an effort to minimize take.


(3) Methods of nest and egg destruction or take are at the registrant’s discretion from among the following:


(i) Egg oiling, using 100 percent corn oil, a substance exempted from regulation by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, and


(ii) Egg and nest destruction, including but not limited to the removal and disposal of eggs and nest material.


(4) Registrants may conduct resident Canada goose nest and egg destruction activities at any time of year. Homeowners’ associations and local governments or their agents must obtain landowner consent prior to destroying nests and eggs on private property within the homeowners’ association or local government’s jurisdiction and be in compliance with all State and local laws and regulations.


(5) Registrants authorized to operate under the depredation order may possess, transport, and dispose of resident Canada goose nests and eggs taken under this section. Registrants authorized to operate under the program may not sell, offer for sale, barter, or ship for the purpose of sale or barter any resident Canada goose nest or egg taken under this section.


(6) Registrants exercising the privileges granted by this section must submit an annual report summarizing activities, including the date, numbers, and location of nests and eggs taken by October 31 of each year at https://epermits.fws.gov/eRCGR before any subsequent registration for the following year.


(7) Nothing in this section authorizes the destruction of resident Canada goose nests or the take of resident Canada goose eggs contrary to the laws or regulations of any State or Tribe, and none of the privileges of this section may be exercised unless the registrant is authorized to operate under the program and possesses the appropriate State or Tribal permits, when required. Moreover, this section does not authorize the killing of any migratory bird species or destruction of their nest or eggs other than resident Canada geese.


(8) Registrants may not undertake any actions under this section if the activities adversely affect species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this order must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, registrants must:


(i) Follow the Federal-State Contingency Plan for the whooping crane;


(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi sandhill crane nest;


(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management guidelines for all management activities;


(iv) Contact the Arizona Ecological Services Office (for the Colorado River and Arizona sites) or the Carlsbad Fish and Wildlife Office (for Salton Sea sites) if control activities are proposed in or around occupied habitats (cattail or cattail bulrush marshes) to discuss the proposed activity and ensure that implementation will not adversely affect clapper rails or their habitats; and


(v) In California, any control activities of resident Canada geese in areas used by the following species listed under the Endangered Species Act must be done in coordination with the appropriate local FWS field office and in accordance with standard local operating procedures for avoiding adverse effects to the species or its critical habitat:


(A) Birds: Light-footed clapper rail, California clapper rail, Yuma clapper rail, California least tern, southwestern willow flycatcher, least Bell’s vireo, western snowy plover, California gnatcatcher.


(B) Amphibians: California red-legged frog and California tiger salamander.


(C) Insects: Valley elderberry longhorn beetle and delta green ground beetle.


(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp, longhorn fairy shrimp, vernal pool tadpole shrimp, San Diego fairy shrimp, and Riverside fairy shrimp.


(E) Plants: Butte County meadowfoam, large-flowered wooly meadowfoam, Cook’s lomatium, Contra Costa goldfields, Hoover’s spurge, fleshy owl’s clover, Colusa grass, hairy Orcutt grass, Solano grass, Greene’s tuctoria, Sacramento Valley Orcutt grass, San Joaquin Valley Orcutt grass, slender Orcutt grass, California Orcutt grass, spreading navarretia, and San Jacinto Valley crownscale.


(e) Can the depredation order be suspended? We reserve the right to suspend or revoke this authorization for a particular landowner, homeowners’ association, or local government if we find that the registrant has not adhered to the terms and conditions specified in the depredation order. Final decisions to revoke authority will be made by the appropriate Regional Director. The criteria and procedures for suspension, revocation, reconsideration, and appeal are outlined in §§ 13.27 through 13.29 of this subchapter. For the purposes of this section, “issuing officer” means the Regional Director and “permit” means the authority to act under this depredation order. For purposes of § 13.29(e), appeals must be made to the Director. Additionally, at such time that we determine that resident Canada goose populations no longer need to be reduced in order to resolve or prevent injury to people, property, agricultural crops, or other interests, we may choose to terminate part or all of the depredation order by subsequent regulation. In all cases, we will annually review the necessity and effectiveness of the depredation order.


(f) Has the Office of Management and Budget (OMB) approved the information collection requirements of the depredation order? OMB has approved the information collection and recordkeeping requirements of the depredation order under OMB control number 1018-0133. 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. You may send comments on the information collection and recordkeeping requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[71 FR 45988, Aug. 10, 2006, as amended at 72 FR 46408, Aug. 20, 2007; 79 FR 43966, July 29, 2014; 84 FR 28773, June 20, 2019]


§ 21.51 Depredation order for resident Canada geese at agricultural facilities.

(a) Which Canada geese are covered by this order? This regulation addresses the control and management of resident Canada geese, as defined in § 21.3.


(b) What is the depredation order for resident Canada geese at agricultural facilities, and what is its purpose? The depredation order for resident Canada geese at agricultural facilities authorizes States and Tribes, via the State or Tribal wildlife agency, to implement a program to allow landowners, operators, and tenants actively engaged in commercial agriculture (agricultural producers) (or their employees or agents) to conduct direct damage management actions such as nest and egg destruction, gosling and adult trapping and culling programs, or other lethal and non-lethal wildlife-damage management strategies on resident Canada geese when the geese are committing depredations to agricultural crops and when necessary to resolve or prevent injury to agricultural crops or other agricultural interests from resident Canada geese.


(c) Who may participate in the depredation order? State and Tribal wildlife agencies in the following States may authorize agricultural producers (or their employees or agents) to conduct and implement various components of the depredation order at agricultural facilities in the Atlantic, Central, and Mississippi Flyway portions of these States: Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.


(d) What are the restrictions of the depredation order for resident Canada geese at agricultural facilities? The depredation order for resident Canada geese at agricultural facilities is subject to the following restrictions:


(1) Only landowners, operators, and tenants (or their employees or agents) actively engaged in commercial activities (agricultural producers) so designated by the States may act under this order.


(2) Authorized agricultural producers should use nonlethal goose management tools to the extent they deem appropriate. To minimize lethal take, agricultural producers should adhere to the following procedure:


(i) Assess the problem to determine its extent or magnitude, its impact to current operations, and the appropriate control method to be used.


(ii) Base control methods on sound biological, environmental, social, and cultural factors.


(iii) Formulate appropriate methods into a control strategy that uses the approach/concept that encourages the use of several control techniques rather than relying on a single method.


(iv) Implement all appropriate nonlethal management techniques (such as harassment and habitat modification) in conjunction with take authorized under this order.


(3)(i) Methods of take for the control of resident Canada geese are at the State’s or Tribe’s discretion among the following:


(A) Egg oiling,


(B) Egg and nest destruction,


(C) Shotguns,


(D) Lethal and live traps,


(E) Nets,


(F) Registered animal drugs, pesticides, and repellants,


(G) Cervical dislocation, and


(H) CO2 asphyxiation.


(ii) Birds caught live may be euthanized or transported and relocated to another site approved by the State or Tribal wildlife agency, if required.


(iii) All techniques used must be in accordance with other Federal, State, Tribal, and local laws, and their use must comply with any labeling restrictions.


(iv) Persons using shotguns must use nontoxic shot, as listed in § 20.21(j) of this subchapter.


(v) Persons using egg oiling must use 100 percent corn oil, a substance exempted from regulation by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.


(4) Under this section, authorized agricultural producers and their employees and agents may:


(i) Conduct management and control activities, involving the take of resident Canada geese, as follows:


Where
When
In the Atlantic Flyway States of Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and West VirginiaBetween April 1 and August 31.
In the Mississippi and Central Flyway portions of these States: Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and WyomingBetween May 1 and August 31.

(ii) Destroy the nests and eggs of resident Canada geese at any time of year.


(5) Authorized agricultural producers and their employees and agents may possess, transport, and otherwise dispose of resident Canada geese taken under this section. Disposal of birds taken under this order may be by donation to public museums or public institutions for scientific or educational purposes, processing for human consumption and subsequent distribution free of charge to charitable organizations, or burial or incineration. Agricultural producers, their employees, and designated agents may not sell, offer for sale, barter, or ship for the purpose of sale or barter any resident Canada geese taken under this section, nor their plumage or eggs. Any specimens needed for scientific purposes as determined by the Director must not be destroyed, and information on birds carrying metal leg bands must be submitted to the Bird Banding Laboratory by means of a toll-free telephone number at 1-800-327-BAND (or 2263).


(6) Resident Canada geese may be taken only on land which an authorized agricultural producer personally controls and where geese are committing depredations to agricultural crops.


(7) Authorized agricultural producers, and their employees and agents, operating under the provisions of this section may not use decoys, calls, or other devices to lure birds within gun range.


(8) Any authorized agricultural producer exercising the privileges of this section must keep and maintain a log that indicates the date and number of birds killed and the date and number of nests and eggs taken under this authorization. The log must be maintained for a period of 3 years (and records for 3 previous years of takings must be maintained at all times thereafter). The log and any related records must be made available to Federal, State, or Tribal wildlife enforcement officers upon request during normal business hours.


(9) Nothing in this section authorizes the killing of resident Canada geese or the destruction of their nests and eggs contrary to the laws or regulations of any State or Tribe, and none of the privileges of this section may be exercised unless the agricultural producer possesses the appropriate State or Tribal permits, when required. Moreover, this regulation does not authorize the killing of any migratory bird species or destruction of their nests or eggs other than resident Canada geese.


(10) States and Tribes exercising the privileges granted by this section must submit an annual report summarizing activities, including the numbers and County of birds, nests, and eggs taken, by December 31 of each year to the Regional Migratory Bird Permit Office listed in § 2.2 of this subchapter.


(11) Nothing in this section applies to any Federal land without written permission of the Federal agency with jurisdiction.


(12) Authorized agricultural producers may not undertake any actions under this section if the activities adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this order must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, agricultural producers must:


(i) Follow the Federal-State Contingency Plan for the whooping crane;


(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi sandhill crane nest; and


(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management guidelines for all management activities.


(e) Can the depredation order be suspended? We reserve the right to suspend or revoke a State, Tribal, or agricultural producer’s authority under this program if we find that the terms and conditions specified in the depredation order have not been adhered to by that State or Tribe. Final decisions to revoke authority will be made by the appropriate Regional Director. The criteria and procedures for suspension, revocation, reconsideration, and appeal are outlined in §§ 13.27 through 13.29 of this subchapter. For the purposes of this section, “issuing officer” means the Regional Director and “permit” means the authority to act under this depredation order. For purposes of § 13.29(e), appeals must be made to the Director. Additionally, at such time that we determine that resident Canada geese populations no longer pose a threat to agricultural crops or no longer need to be reduced in order to resolve or prevent injury to agricultural crops or other agricultural interests, we may choose to terminate part or all of the depredation order by subsequent regulation. In all cases, we will annually review the necessity and effectiveness of the depredation order.


(f) Has the Office of Management and Budget (OMB) approved the information collection requirements of the depredation order? OMB has approved the information collection and recordkeeping requirements of the depredation order under OMB control number 1018-0133. 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. You may send comments on the information collection and recordkeeping requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[71 FR 45989, Aug. 10, 2006, as amended at 79 FR 43966, July 29, 2014; 84 FR 28773, June 20, 2019; 85 FR 10623, Feb. 25, 2020]


§ 21.52 Public health control order for resident Canada geese.

(a) Which Canada geese are covered by this order? This regulation addresses the control and management of resident Canada geese, as defined in § 21.3.


(b) What is the public health control order for resident Canada geese, and what is its purpose? The public health control order for resident Canada geese authorizes States, Tribes, and the District of Columbia, via the State or Tribal wildlife agency, to conduct resident Canada goose control and management activities including direct control strategies such as trapping and relocation, nest and egg destruction, gosling and adult trapping and culling programs, or other lethal and non-lethal wildlife damage-management strategies when resident Canada geese are posing a direct threat to human health.


(c) What is a direct threat to human health? A direct threat to human health is one where a Federal, State, Tribal, or local public health agency has determined that resident Canada geese pose a specific, immediate human health threat by creating conditions conducive to the transmission of human or zoonotic pathogens. The State or Tribe may not use this control order for situations in which resident Canada geese are merely causing a nuisance.


(d) Who may participate in the program? Only State and Tribal wildlife agencies in the lower 48 States and the District of Columbia (or their employees or agents) may conduct and implement the various components of the public health control order for resident Canada geese.


(e) What are the restrictions of the public health depredation order for resident Canada geese? The public health control order for resident Canada geese is subject to the following restrictions:


(1) Authorized State and Tribal wildlife agencies should use nonlethal goose management tools to the extent they deem appropriate.


(2)(i) Methods of take for the control of resident Canada geese are at the State’s and Tribe’s discretion from among the following:


(A) Egg oiling,


(B) Egg and nest destruction,


(C) Shotguns,


(D) Lethal and live traps,


(E) Nets,


(F) Registered animal drugs, pesticides, and repellants,


(G) Cervical dislocation, and


(H) CO2 asphyxiation.


(ii) Birds caught live may be euthanized or transported and relocated to another site approved by the State or Tribal wildlife agency, if required.


(iii) All techniques used must be in accordance with other Federal, State, Tribal, and local laws, and their use must comply with any labeling restrictions.


(iv) Persons using shotguns must use nontoxic shot, as listed in § 20.21(j) of this subchapter.


(v) Persons using egg oiling must use 100 percent corn oil, a substance exempted from regulation by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.


(3) Authorized State and Tribal wildlife agencies and their employees and agents may conduct management and control activities, involving the take of resident Canada geese, under this section between April 1 and August 31. The destruction of resident Canada goose nests and eggs may take place at any time of year.


(4) Authorized State and Tribal wildlife agencies and their employees and agents may possess, transport, and otherwise dispose of resident Canada geese taken under this section. Disposal of birds taken under this order may be by donation to public museums or public institutions for scientific or educational purposes, processing for human consumption and subsequent distribution free of charge to charitable organizations, or burial or incineration. States, their employees, and designated agents may not sell, offer for sale, barter, or ship for the purpose of sale or barter any resident Canada geese taken under this section, nor their plumage or eggs. Any specimens needed for scientific purposes as determined by the Regional Director must not be destroyed, and information on birds carrying metal leg bands must be submitted to the Bird Banding Laboratory by means of a toll-free telephone number at 1-800-327-BAND (or 2263).


(5) Resident Canada geese may be taken only within the specified area of the direct threat to human health.


(6) Authorized State and Tribal wildlife agencies, and their employees and agents operating under the provisions of this section may not use decoys, calls, or other devices to lure birds within gun range.


(7) No person conducting activities under this section should construe the program as authorizing the killing of resident Canada geese or destruction of their nests and eggs contrary to any State law or regulation, nor may any control activities be conducted on any Federal land without specific authorization by the responsible management agency. No person may exercise the privileges granted under this section unless they possess any permits required for such activities by any State or Federal land manager.


(8) Any State or Tribal employee or designated agent authorized to carry out activities under this section must have a copy of the State’s or Tribal authorization and designation in their possession when carrying out any activities. If the State or Tribe is conducting operations on private property, the State or Tribe must also require the property owner or occupant on whose premises resident Canada goose activities are being conducted to allow, at all reasonable times, including during actual operations, free and unrestricted access to any Service special agent or refuge officer, State or Tribal wildlife or deputy wildlife agent, warden, protector, or other wildlife law enforcement officer on the premises where they are, or were, conducting activities. Furthermore, any State or Tribal employee or designated agent conducting such activities must promptly furnish whatever information is required concerning such activities to any such wildlife officer.


(9) States and Tribes exercising the privileges granted by this section must submit an annual report summarizing activities, including the numbers and County of birds taken, by December 31 of each year to the Regional Migratory Bird Permit Office listed in § 2.2 of this subchapter.


(10) Authorized State and Tribal wildlife agencies may not undertake any actions under this section if the activities adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this order must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, State and Tribal wildlife agencies must:


(i) Follow the Federal-State Contingency Plan for the whooping crane;


(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi sandhill crane nest;


(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management guidelines for all management activities;


(iv) Contact the Arizona Fish and Wildlife Service Ecological Services Office (for the Colorado River and Arizona sites) or the Carlsbad Fish and Wildlife Office (for Salton Sea sites) if control activities are proposed in or around occupied habitats (cattail or cattail bulrush marshes) to discuss the proposed activity and ensure that implementation will not adversely affect clapper rails or their habitats; and


(v) In California, any control activities of resident Canada geese in areas used by the following species listed under the Endangered Species Act must be done in coordination with the appropriate local FWS field office and in accordance with standard local operating procedures for avoiding adverse effects to the species or its critical habitat:


(A) Birds: Light-footed clapper rail, California clapper rail, Yuma clapper rail, California least tern, southwestern willow flycatcher, least Bell’s vireo, western snowy plover, California gnatcatcher.


(B) Amphibians: California red-legged frog and California tiger salamander.


(C) Insects: Valley elderberry longhorn beetle and delta green ground beetle.


(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp, longhorn fairy shrimp, vernal pool tadpole shrimp, San Diego fairy shrimp, and Riverside fairy shrimp.


(E) Plants: Butte County meadowfoam, large-flowered wooly meadowfoam, Cook’s lomatium, Contra Costa goldfields, Hoover’s spurge, fleshy owl’s clover, Colusa grass, hairy Orcutt grass, Solano grass, Greene’s tuctoria, Sacramento Valley Orcutt grass, San Joaquin Valley Orcutt grass, slender Orcutt grass, California Orcutt grass, spreading navarretia, and San Jacinto Valley crownscale.


(f) Can the control order be suspended? We reserve the right to suspend or revoke a State’s or Tribe’s authority under this program if we find that the terms and conditions specified in the depredation order have not been adhered to by that agency. Final decisions to revoke authority will be made by the appropriate Regional Director. The criteria and procedures for suspension, revocation, reconsideration, and appeal are outlined in §§ 13.27 through 13.29 of this subchapter. For the purposes of this section, “issuing officer” means the Regional Director and “permit” means the authority to act under this control order. For purposes of § 13.29(e), appeals must be made to the Director. Additionally, at such time that we determine that resident Canada geese populations no longer pose direct threats to human health, we may choose to terminate part or all of the control order by subsequent regulation. In all cases, we will annually review the necessity and effectiveness of the control order.


(g) Has the Office of Management and Budget (OMB) approved the information collection requirements of the control order? OMB has approved the information collection and recordkeeping requirements of the control order under OMB control number 1018-0133. 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. You may send comments on the information collection and recordkeeping requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[71 FR 45990, Aug. 10, 2006, as amended at 79 FR 43966, July 29, 2014; 84 FR 28773, June 20, 2019]


§ 21.53 Control order for purple swamphens.

(a) Control of purple swamphens. Federal, State, Tribal, and local wildlife management agencies, and their tenants, employees, or agents may remove or destroy purple swamphens (Porphyrio porphyrio) or their nests or eggs at any time when they find them anywhere in the contiguous United States, Hawaii, Alaska, the Commonwealth of Puerto Rico, or the U.S. Virgin Islands. Any authorized agency personnel may temporarily possess, transport, and dispose of purple swamphens, subject to the restrictions in paragraph (c) of this section. No permit is necessary to engage in these actions.


(b) Disposal of purple swamphens. If you are authorized to control purple swamphens, you may dispose of purple swamphens by the following methods: You may donate purple swamphens taken under this order to public museums or public institutions for scientific or educational purposes; you may dispose of the carcasses by burial or incineration; or, if the carcasses are not readily retrievable, you may leave them in place. No one may retain for personal use, offer for sale, or sell a purple swamphen removed under this section.


(c) Other provisions. (1) You may not remove or destroy purple swamphens or their nests or eggs if doing so is contrary to any State, territorial, tribal, or local laws or regulations.


(2) You may not remove or destroy purple swamphens or their nests or eggs if doing so will adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act. In particular, the purple swamphen resembles the native purple gallinule (Porphyrula martinica). Authorized persons must take special care not to take purple gallinules or their nests or eggs when conducting purple swamphen control activities.


(3) If you use firearms to control purple swamphens under this regulation, you may use only nontoxic shot or nontoxic bullets for the control.


(4) If, while operating under this regulation, an authorized person takes any other species protected under the Endangered Species Act, the Migratory Bird Treaty Act, or the Bald and Golden Eagle Protection Act, that person must immediately report the take to the nearest Ecological Services office of the Fish and Wildlife Service. See http://www.fws.gov/where/ to find the location of the nearest Ecological Services office.


(5) We may suspend or revoke the authority of any agency or individual to undertake purple swamphen control if we find that agency or individual has, without an applicable permit, taken actions that may take Federally listed threatened or endangered species or any bird species protected by the Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act (see § 10.13 of subchapter A of this chapter for the list of protected migratory bird species), or otherwise violated Federal regulations.


[75 FR 9316, Mar. 1, 2010, as amended at 80 FR 15691, Mar. 25, 2015]


§ 21.54 Control order for muscovy ducks in the United States.

(a) Control of muscovy ducks. Anywhere in the contiguous United States except in Hidalgo, Starr, and Zapata Counties in Texas, and in Alaska, Hawaii, and U.S. territories and possessions, landowners and Federal, State, Tribal, and local wildlife management agencies, and their tenants, employees, or agents may, without a Federal permit, remove or destroy muscovy ducks (Cairina moschata) (including hybrids of muscovy ducks), or their nests, or eggs at any time when found. Any authorized person may temporarily possess, transport, and dispose of muscovy ducks taken under this order.


(b) Muscovy ducks in Hidalgo, Starr, and Zapata Counties in Texas. In these counties, take of muscovy ducks, their nests, and their eggs may be allowed if we issue a depredation permit for the activity.


(c) Disposal of muscovy ducks. You may donate muscovy ducks taken under this order to public museums or public institutions for scientific or educational purposes, or you may dispose of them by burying or incinerating them. You may not retain for personal use or consumption, offer for sale, or sell a muscovy duck removed under authority of this section, nor may you release it in any other location.


(d) Other provisions. (1) You must comply with any State, territorial, or Tribal laws or regulations governing the removal or destruction of muscovy ducks or their nests or eggs.


(2) You may not remove or destroy muscovy ducks or their nests or eggs if doing so will adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act. If you use a firearm to kill muscovy ducks under the provisions of this section, you must use nontoxic shot or nontoxic bullets to do so.


(3) If you operate under this order, you must immediately report the take of any species protected under the Endangered Species Act, or any other bird species protected under the Migratory Bird Treaty Act, to the Fish and Wildlife Service Ecological Services Office for the State or location in which the take occurred.


(4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake muscovy duck control if we find that the agency or individual has undertaken actions that may harm Federally listed threatened or endangered species or are contrary to the provisions of this part.


[75 FR 9321, Mar. 1, 2010]


§ 21.55 Control order for invasive migratory birds in Hawaii.

(a) Control of cattle egrets and barn owls. Personnel of the agencies listed in paragraph (b) of this section may take cattle egrets (Bubulcus ibis) or barn owls (Tyto alba) using the methods authorized in paragraph (c) of this section at any time anywhere in the State of Hawaii, the Northwestern Hawaiian Islands, or the unincorporated territory of Midway Atoll. No permit is necessary to engage in these actions. In this section, the word “you” means a person operating officially as an employee of one of the authorized agencies.


(b) Authorized agencies. (1) Federal Aviation Administration;


(2) Hawaii Department of Agriculture;


(3) Hawaii Department of Lands and Natural Resources, Division of Forestry and Wildlife;


(4) National Oceanic and Atmospheric Administration;


(5) National Park Service;


(6) U.S. Department of Agriculture – Animal and Plant Health Inspection Service, Wildlife Services;


(7) U.S. Department of Defense;


(8) U.S. Fish and Wildlife Service;


(9) U.S. Geological Survey; and


(10) University of Hawaii – Pacific Cooperative Studies Units with program mandates to accomplish invasive species eradication and control, including the five island Invasive Species Committees.


(c) Means of take. (1) You may take cattle egrets and barn owls by means of lethal take or active nest take. Lethal take may occur by firearm or slingshot in accordance with paragraph (c)(2) of this section or lethal or live traps. Active nest take may occur by egg oiling in accordance with paragraph (c)(3) of this section or destruction of nest material and contents (including viable eggs and chicks). Birds may be euthanized by cervical dislocation, CO2 asphyxiation, or other recommended method in the American Veterinary Medical Association Guidelines on Euthanasia.


(2) If you use a firearm or slingshot to kill cattle egrets or barn owls under the provisions of this order, you must use nontoxic shot or nontoxic bullets to do so. See § 20.21(j) of this chapter for a list of approved nontoxic shot types.


(3) Eggs must be oiled with 100 percent corn oil, which is exempted from regulation under the Federal Insecticide, Fungicide, and Rodenticide Act by the U.S. Environmental Protection Agency.


(4) You may use concealment (such as blinds) and luring devices (such as decoys or recorded calls) for locating, capturing, and/or taking cattle egrets or barn owls.


(d) Land access. You must obtain appropriate landowner permission before conducting activities authorized by this order.


(e) Relationship to other regulations. You may take cattle egrets and barn owls under this order only in a way that complies with all applicable Federal, State, county, municipal, or tribal laws. You are responsible for obtaining all required authorizations to conduct this activity.


(f) Release of injured, sick, or orphaned cattle egrets or barn owls. Wildlife rehabilitators, veterinarians, and all other individuals or agencies who receive sick, injured, or orphaned cattle egrets or barn owls are prohibited from releasing any individuals of those species back into the wild in the State of Hawaii, the Northwestern Hawaiian Islands, or the unincorporated territory of Midway Atoll. All applicable local, State, Federal, and/or territorial regulations must be followed to transfer, possess, and/or release cattle egrets or barn owls in any other location.


(g) Disposal of cattle egret or barn owl carcasses, nests, or nest contents. You may donate carcasses, nests, or nest contents taken under this control order to public museums or public institutions for scientific or educational purposes or to persons authorized by permit or regulation to possess them. You may dispose of the carcasses by burial or incineration; or, if the carcasses are not safely retrievable, you may leave them in place. No one may retain for personal use, offer for sale, barter or trade, or sell a cattle egret or a barn owl or any feathers, parts, nests, or nest contents taken under this section.


(h) Endangered or threatened species. You may not take cattle egrets or barn owls if doing so will adversely affect other migratory birds protected under the Migratory Bird Treaty Act or species designated as endangered or threatened under the authority of the Endangered Species Act.


(i) Reporting take. Any agency engaged in control activities under this control order must provide an annual report of take during the calendar year for each species by January 31st of the following year. The report must include a summary of the number of birds and number of active nests taken for each species, the months in which they were taken, and the island(s) on which they were taken. Multiple reports within agencies may be combined, as appropriate. Submit annual reports to the Pacific Region Migratory Bird Permit Office in Portland, Oregon, at the address shown at 50 CFR 2.2.


(j) Reporting nontarget take. If, while operating under this control order, you take any other species protected under the Endangered Species Act or the Migratory Bird Treaty Act, you must report within 72 hours the take to the Pacific Region Migratory Bird Permit Office in Portland, Oregon, at the address shown at 50 CFR 2.2.


(k) Revocation of authority to operate under this order. We may suspend or revoke the authority of any individual or agency to operate under this order if we find that the individual or agency has taken actions that may take federally listed endangered or threatened species or any other bird species protected by the Migratory Bird Treaty Act (see 50 CFR 10.13 for the list of protected migratory bird species), or has violated any Federal or State law or regulation governing this activity. We will notify the affected agency by certified mail, and may change this control order accordingly.


[82 FR 34425, July 25, 2017]


Subpart E – Control of Overabundant Migratory Bird Populations

§ 21.60 Conservation order for light geese.

(a) What is a conservation order? A conservation order is a special management action that is needed to control certain wildlife populations when traditional management programs are unsuccessful in preventing overabundance of the population. We are authorizing a conservation order under the authority of the Migratory Bird Treaty Act to reduce and stabilize various light goose populations. The conservation order allows new methods of taking light geese, allows shooting hours for light geese to end one-half hour after sunset, and imposes no daily bag limits for light geese inside or outside the migratory bird hunting season frameworks as described in this section.


(b) Which waterfowl species are covered by the order? The conservation order addresses management of greater snow (Chen caerulescens atlantica), lesser snow (C. c. caerulescens), and Ross’s (C. rossii) geese that breed, migrate, and winter in North America. The term light geese refers collectively to greater and lesser snow geese and Ross’s geese.


(c) Where can the conservation order be authorized? The Director can authorize the conservation order in these areas:


(1) The following States that are contained within the boundaries of the Atlantic Flyway: Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, West Virginia.


(2) The following States, or portions of States, that are contained within the boundaries of the Mississippi and Central Flyways: Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.


(3) The following States, or portions of States, that are contained within the boundaries of the Pacific Flyway: Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.


(4) Tribal lands within the geographic boundaries in paragraphs (c)(1), (2), and (3) of this section.


(d) When will the Director authorize the conservation order in a particular Flyway? (1) The Director may authorize the conservation order for the reduction of greater snow geese for any State or Tribe contained within the Atlantic Flyway by publishing a notice under paragraph (e) of this section when the May Waterfowl Population Status report indicates that the management goal of 500,000 birds has been exceeded and that special conservation actions conducted in Canada are insufficient to reduce the population. Authorization of the conservation order in the U.S. portion of the Atlantic Flyway will occur after the Director determines the degree to which the management goal has been exceeded, the trajectory of population growth, anticipated harvest that would result from implementation of the conservation order, and whether or not similar conservation actions will be conducted in Canada.


(2) The Director may authorize the conservation order for the reduction of mid-continent light geese (lesser snow and Ross’s geese) for any State or Tribe contained within the Mississippi and Central Flyways by publishing a notice under paragraph (e) of this section when the May Waterfowl Population Status report indicates that the management goal of 1,600,000 birds (winter index for Mid-continent Population and Western Central Flyway Population, combined) has been exceeded. Authorization of the conservation order in the U.S. portion of the Mississippi and Central Flyways will occur after the Director determines the degree to which the management goal has been exceeded, the trajectory of population growth, anticipated harvest that would result from implementation of the conservation order, and whether or not similar conservation actions will be conducted in Canada.


(3) The Director may authorize a conservation order for the reduction of light geese (lesser snow and Ross’s geese) for any State or Tribe contained within the Pacific Flyway by publishing a notice under paragraph (e) of this section when the Director determines that light goose numbers in the western Arctic have exceeded the ability of their breeding habitat to support them.


(e) How will the conservation order be authorized for a particular Flyway? The Director will publish a notice in the Federal Register when the conservation order is authorized in a particular Flyway.


(f) What is required for State/Tribal governments to participate in the conservation order? When authorized by the Director, any State or Tribal government responsible for the management of wildlife and migratory birds may, without permit, kill or cause to be killed under its general supervision, light geese under the following conditions:


(1) Activities conducted under the conservation order may not affect endangered or threatened species as designated under the Endangered Species Act.


(2) Control activities must be conducted clearly as such and are intended to relieve pressures on migratory birds and habitat essential to migratory bird populations only and are not to be construed as opening, reopening, or extending any open hunting season contrary to any regulations promulgated under Section 3 of the Migratory Bird Treaty Act.


(3) Control activities may be conducted only when all waterfowl (including light goose) and crane hunting seasons, excluding falconry, are closed.


(4) Control measures employed through this section may be used only between the hours of one-half hour before sunrise to one-half hour after sunset.


(5) Nothing in the conservation order may limit or initiate management actions on Federal land without concurrence of the Federal agency with jurisdiction.


(6) States and Tribes must designate participants who must operate under the conditions of the conservation order.


(7) States and Tribes must inform participants of the requirements and conditions of the conservation order that apply.


(8) States and tribes must keep annual records of activities carried out under the authority of the conservation order. Specifically, information must be collected on:


(i) The number of persons participating in the conservation order;


(ii) The number of days people participated in the conservation order;


(iii) The number of light geese shot and retrieved under the conservation order; and


(iv) The number of light geese shot but not retrieved.


(9) The States and Tribes must submit an annual report summarizing activities conducted under the conservation order on or before September 15 of each year, to the Chief, Division of Migratory Bird Management, at the address provided at 50 CFR 2.1(b). Information from Tribes may be incorporated in State reports.


(g) What is required for persons to participate in the conservation order? Individual participants in State or Tribal programs covered by the conservation order must comply with the following provisions:


(1) Nothing in the conservation order authorizes the take of light geese contrary to any State or Tribal laws or regulations, and none of the privileges granted under the conservation order may be exercised unless persons acting under the authority of the conservation order possess whatever permit or other authorization(s) may be required for such activities by the State or Tribal government concerned.


(2) Persons who take light geese under the conservation order may not sell or offer for sale those birds or their plumage but may possess, transport, and otherwise properly use them.


(3) Persons acting under the authority of the conservation order must permit at all reasonable times, including during actual operations, any Federal or State game or deputy game agent, warden, protector, or other game law enforcement officer free and unrestricted access over the premises on which such operations have been or are being conducted and must promptly furnish whatever information an officer requires concerning the operation.


(4) Persons acting under the authority of the conservation order may take light geese by any method except those prohibited as follows:


(i) With a trap, snare, net, rifle, pistol, swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machine gun, fish hook, poison, drug, explosive, or stupefying substance.


(ii) From or by means, aid, or use of a sinkbox or any other type of low floating device having a depression affording the person a means of concealment beneath the surface of the water.


(iii) From or by means, aid, or use of any motor vehicle, motor-driven land conveyance, or aircraft of any kind, except that paraplegics and persons missing one or both legs may carry out take activities from any stationary motor vehicle or stationary motor-driven land conveyance.


(iv) From or by means of any motorboat or other craft having a motor attached, or any sailboat, unless the motor has been completely shut off and the sails furled, and its progress has ceased. A craft under power may be used only to retrieve dead or crippled birds; however, the craft may not be used under power to shoot any crippled bird.


(v) By the use or aid of live birds as decoys. It is a violation of this paragraph (g) for any person to take light geese on an area where tame or captive live geese are present unless such birds are and have been for a period of 10 consecutive days before the taking, confined within an enclosure that substantially reduces the audibility of their calls and totally conceals the birds from the sight of light geese.


(vi) By means or aid of any motor-driven land, water, or air conveyance, or any sailboat used for the purpose of or resulting in the concentrating, driving, rallying, or stirring up of light geese.


(vii) By the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited as described in § 20.11(j-k). Light geese may not be taken on or over lands or areas that are baited areas, and where grain or other feed has been distributed or scattered solely as the result of manipulation of an agricultural crop or other feed on the land where grown, or solely as the result of a normal agricultural operation as described in § 20.11(h) and (l). However, nothing in this paragraph (g) prohibits the taking of light geese on or over the following lands or areas that are not otherwise baited areas:


(A) Standing crops or flooded standing crops (including aquatics); standing, flooded, or manipulated natural vegetation; flooded harvested croplands; or lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting, harvesting, postharvest manipulation or normal soil stabilization practice as described in § 20.11(g), (i), (l), and (m);


(B) From a blind or other place of concealment camouflaged with natural vegetation;


(C) From a blind or other place of concealment camouflaged with vegetation from agricultural crops, as long as such camouflaging does not result in the exposing, depositing, distributing, or scattering of grain or other feed; or


(D) Standing or flooded standing agricultural crops where grain is inadvertently scattered solely as a result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds.


(viii) Participants may not possess shot (either in shotshells or as loose shot for muzzleloading) other than steel shot, bismuth-tin, tungsten-iron, tungsten-polymer, tungsten-matrix, tungsten-bronze, tungsten-nickel-iron, tungsten-tin-iron, tungsten-nickel-iron-tin, tungsten-iron-copper-nickel, or other shots that are authorized in § 20.21(j).


(h) Can the conservation order be suspended? The Director reserves the right to suspend or revoke a State’s or Tribe’s authority under the conservation order if we find that the State or Tribe has not adhered to the terms and conditions specified in this section. The criteria for suspension and revocation are outlined in § 13.27 and § 13.28 of this subchapter. Upon appeal, final decisions to revoke authority will be made by the Director. Additionally, at such time that the Director determines that a specific population of light geese no longer poses a threat to habitats, agricultural crops, or other interests, or is within Flyway management objectives, the Director may choose to terminate part or all of the conservation order.


(i) Under what conditions would the conservation order be suspended? The Director will annually assess the overall impact and effectiveness of the conservation order on each light goose population to ensure compatibility with long-term conservation of this resource. The Director will suspend the conservation order if at any time evidence clearly demonstrates that an individual light goose population no longer presents a serious threat of injury to the area or areas involved. Suspension by the Director will occur by publication of a notice in the Federal Register. However, resumption of growth by the light goose population in question may warrant reinstatement of the conservation order to control the population. The Director will publish a notice of such reinstatement in the Federal Register. Depending on the status of individual light goose populations, it is possible that a conservation order may be in effect for one or more light goose populations, but not others.


(j) What are the information collection requirements? The information collection requirements associated with the conservation order are described in paragraphs (f)(6) through (9) of this section. Reported information helps us to assess the effectiveness of light geese population control methods and strategies and assess whether or not additional population control methods are needed. The Office of Management and Budget has approved this information collection and assigned OMB Control No. 1018-0103. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. At any time, you may submit comments on these information collection requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[73 FR 65951, Nov. 5, 2008; 73 FR 70914, Nov. 24, 2008, as amended at 79 FR 43966, July 29, 2014; 80 FR 13500, Mar. 16, 2015]


§ 21.61 Population control of resident Canada geese.

(a) Which Canada geese are covered by this regulation? This regulation addresses the population control of resident Canada geese, as defined in § 21.3.


(b) What is the resident Canada goose population control program, and what is its purpose? The resident Canada goose population control program is a managed take program implemented under the authority of the Migratory Bird Treaty Act to reduce and stabilize resident Canada goose populations when traditional and otherwise authorized management measures are unsuccessful, not feasible for dealing with, or applicable, in preventing injury to property, agricultural crops, public health, and other interests from resident Canada geese. The Director is authorized to allow States and Tribes to implement a population control, or managed take, program to remedy these injuries. When authorized by the Director, managed take allows additional methods of taking resident Canada geese, allows shooting hours for resident Canada geese to extend to one-half hour after sunset, and removes daily bag limits for resident Canada geese inside or outside the migratory bird hunting season frameworks as described in this section. The intent of the program is to reduce resident Canada goose populations in order to protect personal property and agricultural crops and other interests from injury and to resolve potential concerns about human health. The management and control activities allowed or conducted under the program are intended to relieve or prevent damage and injurious situations. No person should construe this program as opening, reopening, or extending any hunting season contrary to any regulations established under section 3 of the Migratory Bird Treaty Act.


(c) What areas are eligible to participate in the program? When approved by the Director, the State and Tribal wildlife agencies of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming may implement the resident Canada goose population control program components in the Atlantic, Central, and Mississippi Flyway portions of these States.


(d) What is required in order for State governments to participate in a managed take program? Following the conclusion of the first full operational year of §§ 21.49 through 21.52 of this part, any wildlife agency from a State listed in 21.61(c) may request approval for the population control program. A request must include a discussion of the State’s or Tribe’s efforts to address its injurious situations utilizing the methods approved in this rule or a discussion of the reasons why the methods authorized by these rules are not feasible for dealing with, or applicable to, the injurious situations that require further action. Discussions should be detailed and provide the Service with a clear understanding of the injuries that continue, why the authorized methods utilized have not worked, and why methods not utilized could not effectuate resolution of the injuries. A State’s request for approval may be for an area or areas smaller than the entire State. Upon written approval by the Director, any State or Tribal government responsible for the management of wildlife and migratory birds may, without permit, kill or cause to be killed under its general supervision, resident Canada geese under the following conditions:


(1) Activities conducted under the managed take program may not affect endangered or threatened species as designated under the Endangered Species Act.


(2) Control activities may be conducted under this section only between August 1 and August 31.


(3) Control measures employed through this section may be implemented only between the hours of one-half hour before sunrise to one-half hour after sunset.


(4) Nothing in the program may limit or initiate management actions on Federal land without concurrence of the Federal agency with jurisdiction.


(5) States and Tribes must designate participants who must operate under the conditions of the managed take program.


(6) States and Tribes must inform participants of the requirements/conditions of the program that apply.


(7) States and Tribes must keep annual records of activities carried out under the authority of the program. Specifically, information must be collected on:


(i) The number of individuals participating in the program;


(ii) The number of days individuals participated in the program;


(iii) The total number of resident Canada geese shot and retrieved during the program; and


(iv) The number of resident Canada geese shot but not retrieved. The States and Tribes must submit an annual report summarizing activities conducted under the program and an assessment of the continuation of the injuries on or before June 1 of each year to the Chief, Division of Migratory Bird Management, at the address provided at 50 CFR 2.1(b).


(e) What is required for individuals to participate in the program? Individual participants in State and Tribal programs covered by the managed take program must comply with the following requirements:


(1) Participants must comply with all applicable State and Tribal laws or regulations including possession of whatever permit(s) or other authorization(s) may be required by the State or Tribal government concerned.


(2) Participants who take resident Canada geese under the program may not sell or offer for sale those birds or their plumage, but may possess, transport, and otherwise properly use them.


(3) Participants must permit at all reasonable times, including during actual operations, any Service special agent or refuge officer, State or Tribal wildlife or deputy wildlife agent, warden, protector, or other wildlife law enforcement officer free and unrestricted access over the premises on which such operations have been or are being conducted and must promptly furnish whatever information an officer requires concerning the operation.


(4) Participants may take resident Canada geese by any method except those prohibited as follows:


(i) With a trap, snare, net, rifle, pistol, swivel gun, shotgun larger than 10 gauge, punt gun, battery gun, machine gun, fish hook, poison, drug, explosive, or stupefying substance.


(ii) From or by means, aid, or use of a sinkbox or any other type of low-floating device, having a depression affording the person a means of concealment beneath the surface of the water.


(iii) From or by means, aid, or use of any motor vehicle, motor-driven land conveyance, or aircraft of any kind, except that paraplegic persons and persons missing one or both legs may take from any stationary motor vehicle or stationary motor-driven land conveyance.


(iv) From or by means of any motorboat or other craft having a motor attached, or any sailboat, unless the motor has been completely shut off and the sails furled, and its progress has ceased. A craft under power may be used only to retrieve dead or crippled birds; however, the craft may not be used under power to shoot any crippled birds.


(v) By the use or aid of live birds as decoys. No person may take resident Canada geese on an area where tame or captive live geese are present unless such birds are, and have been for a period of 10 consecutive days before the taking, confined within an enclosure that substantially reduces the audibility of their calls and totally conceals the birds from the sight of resident Canada geese.


(vi) By means or aid of any motor-driven land, water, or air conveyance, or any sailboat used for the purpose of or resulting in the concentrating, driving, rallying, or stirring up of resident Canada geese.


(vii) By the aid of baiting, or on or over any baited area, where a person knows or reasonably should know that the area is or has been baited as described in § 20.11(j) and (k) of this part. Resident Canada geese may not be taken on or over lands or areas that are baited areas, and where grain or other feed has been distributed or scattered solely as the result of manipulation of an agricultural crop or other feed on the land where grown, or solely as the result of a normal agricultural operation as described in § 20.11(h) and (l) of this part. However, nothing in this paragraph prohibits the taking of resident Canada geese on or over the following lands or areas that are not otherwise baited areas:


(A) Standing crops or flooded standing crops (including aquatics); standing, flooded, or manipulated natural vegetation; flooded harvested croplands; or lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting, harvesting, post-harvest manipulation or normal soil stabilization practice as described in § 20.11(g), (i), (l), and (m) of this part;


(B) From a blind or other place of concealment camouflaged with natural vegetation;


(C) From a blind or other place of concealment camouflaged with vegetation from agricultural crops, as long as such camouflaging does not result in the exposing, depositing, distributing, or scattering of grain or other feed; or


(D) Standing or flooded standing agricultural crops where grain is inadvertently scattered solely as a result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds.


(E) Participants may not possess shot (either in shotshells or as loose shot for muzzleloading) other than steel shot, bismuth-tin, tungsten-iron, tungsten-polymer, tungsten-matrix, tungsten-nickel iron, or other shots that are authorized in § 20.21(j) of this part.


(f) Under what conditions would we suspend the managed take program? Following authorization by the Director, we will annually assess the overall impact and effectiveness of the program on resident Canada goose populations to ensure compatibility with long-term conservation of this resource. If at any time evidence is presented that clearly demonstrates that resident Canada geese populations no longer need to be reduced in order to allow resolution or prevention of injury to people, property, agricultural crops, or other interests, the Director, in writing, will suspend the program for the resident Canada goose population in question. However, resumption of injuries caused by growth of the population and not otherwise addressable by the methods available in part 21 may warrant reinstatement of such regulations. A State must reapply for approval, including the same information and discussions noted in 21.61(d). Depending on the location of the injury or threat or injury, the Director, in writing, may suspend or reinstate this authorization for one or more resident Canada goose populations, but not others.


(g) What population information is the State or Tribe required to collect concerning the resident Canada goose managed take program? Participating States and Tribes must provide an annual estimate of the breeding population and distribution of resident Canada geese in their State. The States and Tribes must submit this estimate on or before August 1 of each year, to the Chief, Division of Migratory Bird Management, at the address provided at 50 CFR 2.1(b).


(h) What are the general program conditions and restrictions? The program is subject to the conditions elsewhere in this section, and, unless otherwise specifically authorized, the following conditions:


(1) Nothing in this section applies to any Federal land within a State’s or Tribe’s boundaries without written permission of the Federal agency with jurisdiction.


(2) States may not undertake any actions under this section if the activities adversely affect other migratory birds or species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this section must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, States must:


(i) Follow the Federal State Contingency Plan for the whooping crane;


(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi sandhill crane nest; and


(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management guidelines for all management activities.


(i) Has the Office of Management and Budget (OMB) approved the information collection requirements of the program? OMB has approved the information collection and recordkeeping requirements of the program under OMB control number 1018-0133. 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. You may send comments on the information collection and recordkeeping requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[71 FR 45992, Aug. 10, 2006, as amended at 72 FR 46409, Aug. 20, 2007; 79 FR 43966, July 29, 2014]


PART 22 – EAGLE PERMITS


Authority:16 U.S.C. 668-668d; 703-712; 1531-1544.



Source:39 FR 1183, Jan. 4, 1974, unless otherwise noted.

Subpart A – Introduction

§ 22.1 What is the purpose of this part?

This part controls the taking, possession, and transportation within the United States of bald eagles (Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos) and their parts, nests, and eggs for scientific, educational, and depredation control purposes; for the religious purposes of American Indian tribes; and to protect other interests in a particular locality. This part also governs the transportation into or out of the United States of bald and golden eagle parts for scientific, educational, and Indian religious purposes. The import, export, purchase, sale, trade, or barter of bald and golden eagles, or their parts, nests, or eggs is prohibited.


[64 FR 50472, Sept. 17, 1999, as amended at 73 FR 29083, May 20, 2008]


§ 22.2 What activities does this part apply to?

(a)(1) You can possess or transport within the United States, without a Federal permit:


(i) Any live or dead bald eagles, or their parts, nests, or eggs that were lawfully acquired before June 8, 1940; and


(ii) Any live or dead golden eagles, or their parts, nests, or eggs that were lawfully acquired before October 24, 1962.


(2) You may not transport into or out of the United States, import, export, purchase, sell, trade, barter, or offer for purchase, sale, trade, or barter bald or golden eagles, or their parts, nests, or eggs of these lawfully acquired pre-act birds. However, you may transport into or out of the United States any lawfully acquired dead bald or golden eagles, their parts, nests, or dead eagles, if you acquire a permit issued under § 22.22 of this part.


(3) No exemption from any statute or regulation will apply to any offspring of these pre-act birds.


(4) You must mark all shipments containing bald or golden eagles, alive or dead, their parts, nests, or eggs as directed in § 14.81 of this subchapter. The markings must contain the name and address of the person the shipment is going to, the name and address of the person the shipment is coming from, an accurate list of contents by species, and the number of each species.


(b) The provisions in this part are in addition to, and are not in lieu of, other regulations of this subchapter B which may require a permit or prescribe additional restrictions or conditions for the importation, exportation, and interstate transportation of wildlife (see also part 13 of this subchapter).


[39 FR 1183, Jan. 4, 1974, as amended at 64 FR 50472, Sept. 17, 1999]


§ 22.3 Definitions.

In addition to the definitions contained in part 10 of this subchapter, and unless the context otherwise requires, in this part 22:


Alternate nest means one of potentially several nests within a nesting territory that is not an in-use nest at the current time. When there is no in-use nest, all nests in the territory are alternate nests.


Communal roost site means an area where eagles gather repeatedly in the course of a season and shelter overnight and sometimes during the day in the event of inclement weather.


Compatible with the preservation of the bald eagle or the golden eagle means consistent with the goals of maintaining stable or increasing breeding populations in all eagle management units and the persistence of local populations throughout the geographic range of each species.


Cumulative effects means the incremental environmental impact or effect of the proposed action, together with impacts of past, present, and reasonably foreseeable future actions.


Disturb means to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.


Eagle management unit (EMU) means a geographically bounded region within which permitted take is regulated to meet the management goal of maintaining stable or increasing breeding populations of bald or golden eagles.


Eagle nest means any assemblage of materials built, maintained, or used by bald eagles or golden eagles for the purpose of reproduction.


Export for the purpose of this part does not include the transportation of any dead bald or golden eagles, or their parts, nests, or dead eggs out of the United States when accompanied with a valid transportation permit.


Foraging area means an area where eagles regularly feed during one or more seasons.


Import for the purpose of this part does not include the transportation of any dead bald or golden eagles, or their parts, nests, or dead eggs into the United States when accompanied with a valid transportation permit.


Important eagle-use area means an eagle nest, foraging area, or communal roost site that eagles rely on for breeding, sheltering, or feeding, and the landscape features surrounding such nest, foraging area, or roost site that are essential for the continued viability of the site for breeding, feeding, or sheltering eagles.


In-use nest means a bald or golden eagle nest characterized by the presence of one or more eggs, dependent young, or adult eagles on the nest in the past 10 days during the breeding season.


Indirect effects means effects for which a proposed action is a cause, and which may occur later in time and/or be physically manifested beyond the initial impacts of the action, but are still reasonably likely to occur.


Local area population (LAP) means the bald or golden eagle population within the area of a human activity or project bounded by the natal dispersal distance for the respective species. The LAP is estimated using the average eagle density of the EMU or EMUs where the activity or project is located.


Necessary to ensure public health and safety means required to maintain society’s well-being in matters of health and safety.


Nesting attempt means any activity by golden eagles involving egg laying and incubation as determined by the presence of an egg attended by an adult, an adult in incubation posture, or other evidence indicating recent use of a golden eagle nest for incubation of eggs or rearing of young.


Nesting territory means the area that contains one or more eagle nests within the home range of a mated pair of eagles, regardless of whether such nests were built by the current resident pair.


Person means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of any State or political subdivision of a State.


Practicable means available and capable of being done after taking into consideration existing technology, logistics, and cost in light of a mitigation measure’s beneficial value to eagles and the activity’s overall purpose, scope, and scale.


Resource development or recovery includes, but is not limited to, mining, timbering, extracting oil, natural gas and geothermal energy, construction of roads, dams, reservoirs, power plants, power transmission lines, and pipelines, as well as facilities and access routes essential to these operations, and reclamation following any of these operations.


Safety emergency means a situation that necessitates immediate action to alleviate a threat of bodily harm to humans or eagles.


Take means pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.


Transportation into or out of the United States for the purpose of this part means that the permitted item or items transported into or out of the United States do not change ownership at any time, they are not transferred from one person to another in the pursuit of gain or profit, and they are transported into or out of the United States for Indian religious purposes, or for scientific or exhibition purposes under the conditions and during the time period specified on a transportation permit for the items.


[39 FR 1183, Jan. 4, 1974, as amended at 48 FR 57300, Dec. 29, 1983; 64 FR 50472, Sept. 17, 1999; 72 FR 31139, June 5, 2007; 74 FR 46876, Sept. 11, 2009; 81 FR 91550, Dec. 16, 2016]


§ 22.4 Information collection requirements.

(a) The Office of Management and Budget approved the information collection requirements contained in this part 22 under 44 U.S.C. 3507 and assigned OMB Control Number 1018-0022. The Service 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. We are collecting this information to provide information necessary to evaluate permit applications. We will use this information to review permit applications and make decisions, according to criteria established in the Bald and Golden Eagle Protection Act and its regulations, on the issuance, suspension, revocation, or denial of permits. You must respond to obtain or retain a permit.


(b) Direct comments regarding any aspect of these reporting requirements to the Service’s Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).


[63 FR 52637, Oct. 1, 1998, as amended at 74 FR 46876, Sept. 11, 2009; 79 FR 43966, July 29, 2014; 81 FR 91550, Dec. 16, 2016]


Subpart B – General Requirements

§ 22.11 What is the relationship to other permit requirements?

You may not take, possess, or transport any bald eagle (Haliaeetus leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts, nests, or eggs of such birds, except as allowed by a valid permit issued under this part, 50 CFR part 13, 50 CFR part 17, and/or 50 CFR part 21 as provided by § 21.2, or authorized under a depredation order issued under subpart D of this part. We will accept a single application for a permit under this part and any other parts of this subchapter B if it includes all of the information required for an application under each applicable part.


(a) A permit that covers take of bald eagles or golden eagles under 50 CFR part 17 for purposes of providing prospective or current ESA authorization constitutes a valid permit issued under this part for any take authorized under the permit issued under part 17 as long as the permittee is in full compliance with the terms and conditions of the permit issued under part 17. The provisions of part 17 that originally applied will apply for purposes of the Eagle Act authorization, except that the criterion for revocation of the permit is that the activity is incompatible with the preservation of the bald eagle or the golden eagle rather than inconsistent with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv).


(b) You do not need a permit under parts 17 and 21 of this subchapter B for any activity permitted under this part 22 with respect to bald or golden eagles or their parts, nests, or eggs.


(c) A permit under this part only authorizes take, possession, and/or transport under the Bald and Golden Eagle Protection Act and does not provide authorization under the Migratory Bird Treaty Act or the Endangered Species Act for the take, possession, and/or transport of migratory birds or endangered or threatened species other than bald or golden eagles.


(d) If you are transporting dead bald or golden eagles, or their parts, nests, or dead eggs into or out of the United States, you will also need a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) permit under part 23 of this subchapter.


[64 FR 50472, Sept. 17, 1999, as amended at 68 FR 61140, Oct. 27, 2003; 73 FR 29083, May 20, 2008; 81 FR 91550, Dec. 16, 2016]


§ 22.12 What activities are illegal?

(a) You may not sell, purchase, barter, trade, import, or export, or offer for sale, purchase, barter, or trade, at any time or in any manner, any bald eagle (Haliaeetus leucocephalus), or any golden eagle (Aquila chrysaetos), or the parts, nests, or eggs of these birds, and we will not issue a permit to authorize these acts.


(b) You may not transport into or out of the United States any live bald or golden eagle, or any live egg of those birds, and we will not issue a permit to authorize these acts.


[64 FR 50472, Sept. 17, 1999]


Subpart C – Eagle Permits

§ 22.21 What are the requirements concerning scientific and exhibition purpose permits?

We may, under the provisions of this section, issue a permit authorizing the taking, possession, transportation within the United States, or transportation into or out of the United States of lawfully possessed bald eagles or golden eagles, or their parts, nests, or eggs for the scientific or exhibition purposes of public museums, public scientific societies, or public zoological parks. We will not issue a permit under this section that authorizes the transportation into or out of the United States of any live bald or golden eagles, or any live eggs of these birds.


(a) How do I apply if I want a permit for scientific and exhibition purposes? (1) You must submit applications for permits to take, possess, or transport within the United States lawfully acquired live or dead bald or golden eagles, or their parts, nests, or live or dead eggs for scientific or exhibition purposes to the appropriate Regional Director – Attention: Migratory Bird Permit Office. You can find addresses for the Regional Directors in 50 CFR 2.2.


(2) If you want a permit to transport into or out of the United States any lawfully acquired dead bald or golden eagles or their parts, nests, or dead eggs for scientific or exhibition purposes, you must submit your application to the Office of Management Authority. Your application must contain all the information necessary for the issuance of a CITES permit. You must also comply with all the requirements in part 23 of this subchapter before international travel. Mail should be sent to the Division of Management Authority at the address provided at 50 CFR 2.1(b).


(3) Your application for any permit under this section must also contain the information required under this section, § 13.12(a) of this subchapter, and the following information:


(i) Species of eagle and number of such birds, nests, or eggs proposed to be taken, possessed, or transported;


(ii) Specific locality in which taking is proposed, if any;


(iii) Method taking proposed, if any;


(iv) If not taken, the source of eagles and other circumstances surrounding the proposed acquisition or transportation;


(v) Name and address of the public museum, public scientific societies, or public zoological park for which they are intended;


(vi) Complete explanation and justification of request, nature of project or study, number of specimens now at institution, reason these are inadequate, and other appropriate explanations.


(b) What are the conditions? In addition to the general conditions in part 13 of this subchapter B, permits to take, possess, transport within the United States, or transport into or out of the United States bald or golden eagles, or their parts, nests, or eggs for scientific or exhibition purposes, are also subject to the following condition: In addition to any reporting requirement specifically noted in the permit, you must submit a report of activities conducted under the permit to the Regional Director – Attention: Migratory Bird Permit Office, within 30 days after the permit expires.


(c) How do we evaluate your application for a permit? We will conduct an investigation and will only issue a permit to take, possess, transport within the United States, or transport into or out of the United States bald or golden eagles, or their parts, nests, or eggs for scientific or exhibition purposes when we determine that the taking, possession, or transportation is compatible with the preservation of the bald eagle and golden eagle. In making this determination, we will consider, among other criteria, the following:


(1) The direct or indirect effect which issuing such permit would be likely to have upon the wild populations of bald and golden eagles;


(2) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application;


(3) Whether the justification of the purpose for which the permit is being requested is adequate to justify the removal of the eagle from the wild or otherwise change its status; and


(4) Whether the applicant has demonstrated that the permit is being requested for bona fide scientific or exhibition purposes of public museums, public scientific societies, or public zoological parks.


(d) Tenure of permits. The tenure of permits to take bald or golden eagles for scientific or exhibition purposes shall be that shown on the face of the permit.


[39 FR 1183, Jan. 4, 1974, as amended at 63 FR 52638, Oct. 1, 1998; 64 FR 50472, Sept. 17, 1999; 79 FR 43966, July 29, 2014]


§ 22.22 What are the requirements concerning permits for Indian religious purposes?

We will issue a permit only to members of Indian entities recognized and eligible to receive services from the United States Bureau of Indian Affairs listed under 25 U.S.C. 479a-1 engaged in religious activities who satisfy all the issuance criteria of this section. We may, under the provisions of this section, issue a permit authorizing the taking, possession, and transportation within the United States, or transportation into or out of the United States of lawfully acquired bald eagles or golden eagles, or their parts, nests, or eggs for Indian religious use. We will not issue a permit under this section that authorizes the transportation into or out of the United States of any live bald or golden eagles, or any live eggs of these birds.


(a) How do I apply if I want a permit for Indian religious purposes? You must submit applications for permits to take, possess, transport within the United States, or transport into or out of the United States lawfully acquired bald or golden eagles, or their parts, nests, or eggs for Indian religious use to the appropriate Regional Director – Attention: Migratory Bird Permit Office. You can find addresses for the appropriate Regional Directors in 50 CFR 2.2. If you are applying for a permit to transport into or out of the United States, your application must contain all the information necessary for the issuance of a CITES permit. You must comply with all the requirements in part 23 of this subchapter before international travel. Your application for any permit under this section must also contain the information required under this section, § 13.12(a) of this subchapter, and the following information:


(1) Species and number of eagles or feathers proposed to be taken, or acquired by gift or inheritance.


(2) State and local area where the taking is proposed to be done, or from whom acquired.


(3) Name of tribe with which applicant is associated.


(4) Name of tribal religious ceremony(ies) for which required.


(5) You must attach a certification of enrollment in an Indian tribe that is federally recognized under the Federally Recognized Tribal List Act of 1994, 25 U.S.C. 479a-1, 108 Stat. 4791 (1994). The certificate must be signed by the tribal official who is authorized to certify that an individual is a duly enrolled member of that tribe, and must include the official title of that certifying official.


(b) What are the permit conditions? In addition to the general conditions in part 13 of this subchapter B, permits to take, possess, transport within the United States, or transport into or out of the United States bald or golden eagles, or their parts, nests or eggs for Indian religious use are subject to the following conditions:


(1) Bald or golden eagles or their parts possessed under permits issued pursuant to this section are not transferable, except such birds or their parts may be handed down from generation to generation or from one Indian to another in accordance with tribal or religious customs; and


(2) You must submit reports or inventories, including photographs, of eagle feathers or parts on hand as requested by the issuing office.


(c) How do we evaluate your application for a permit? We will conduct an investigation and will only issue a permit to take, possess, transport within the United States, or transport into or out of the United States bald or golden eagles, or their parts, nests or eggs, for Indian religious use when we determine that the taking, possession, or transportation is compatible with the preservation of the bald and golden eagle. In making a determination, we will consider, among other criteria, the following:


(1) The direct or indirect effect which issuing such permit would be likely to have upon the wild populations of bald or golden eagles; and


(2) Whether the applicant is an Indian who is authorized to participate in bona fide tribal religious ceremonies.


(d) How long are the permits valid? We are authorized to amend, suspend, or revoke any permit that is issued under this section (see §§ 13.23, 13.27, and 13.28 of this subchapter).


(1) A permit issued to you that authorizes you to take bald or golden eagles will be valid during the period specified on the face of the permit, but will not be longer than 1 year from the date it is issued.


(2) A permit issued to you that authorizes you to transport and possess bald or golden eagles or their parts, nests, or eggs within the United States will be valid for your lifetime.


(3) A permit authorizing you to transport dead bald eagles or golden eagles, or their parts, nests, or dead eggs into or out of the United States can be used for multiple trips to or from the United States, but no trip can be longer than 180 days. The permit will be valid during the period specified on the face of the permit, not to exceed 3 years from the date it is issued.


[39 FR 1183, Jan. 4, 1974, as amended at 63 FR 52638, Oct. 1, 1998; 64 FR 50473, Sept. 17, 1999]


§ 22.23 What are the requirements for permits to take depredating eagles and eagles that pose a risk to human or eagle health and safety?

(a) How do I apply for a permit? You must submit applications for permits under this section to the appropriate Regional Director – Attention: Migratory Bird Permit Office. You can find addresses for the appropriate Regional Directors in 50 CFR 2.2. Your application must contain the information and certification required by § 13.12(a) of this subchapter, and the following additional information:


(1) Species and number of eagles proposed to be taken;


(2) Location and description of property where taking is proposed;


(3) Inclusive dates for which permit is requested;


(4) Method of taking proposed;


(5) Kind and number of livestock or domestic animals owned by applicant, if applicable;


(6) Kind and amount of alleged damage, or description of the risk posed to human health and safety or eagles; and


(7) Name, address, age, and business relationship with applicant of any person the applicant proposes to act for him as his agent in the taking of such eagles.


(b) What are the permit conditions? In addition to the general conditions set forth in part 13 of this subchapter B, permits to take bald or golden eagles under this section are subject to the following conditions:


(1) Bald or golden eagles may be taken under permit by firearms, traps, or other suitable means except by poison or from aircraft;


(2) The taking of eagles under permit may be done only by the permittee or his agents named in the permit;


(3) Any eagle taken under authority of such permit will be promptly turned over to a Service agent or other game law enforcement officer designated in the permit; and


(4) In addition to any reporting requirement on a permit, you must submit a report of activities conducted under the permit to the appropriate Regional Director – Attention: Migratory Bird Permit Office within 10 days following completion of the taking operations or the expiration of the permit, whichever occurs first.


(c) Issuance criteria. The Director will not issue a permit to take bald or golden eagles unless the Director has determined that such taking is compatible with the preservation of the bald or golden eagle. In making such determination, the Director will consider the following:


(1) The direct or indirect effect which issuing such permit would be likely to have upon the wild population of bald or golden eagles;


(2) Whether evidence shows that bald or golden eagles have in fact become seriously injurious to wildlife or to agriculture or other interests in the particular locality to be covered by the permit and the injury complained of is substantial, or that bald or golden eagles pose a significant risk to human or eagle health and safety; and


(3) Whether the only way to abate or prevent the damage caused by the bald or golden eagle is to take some or all of the offending birds.


(d) Tenure of permits. The tenure of any permit to take bald or golden eagles under this section is that shown on the face of the permit. We will not issue these permits for terms longer than 90 days, except that permits to authorize disturbance associated with hazing eagles from the vicinity may be valid for up to 5 years. We may amend, suspend, or revoke permits issued for a period of longer than 90 days if new information indicates that revised permit conditions are necessary, or that suspension or revocation is necessary, to safeguard local or regional eagle populations.


[39 FR 1183, Jan. 4, 1974, as amended at 63 FR 52638, Oct. 1, 1998; 64 FR 50473, Sept. 17, 1999; 74 FR 46876, Sept. 11, 2009]


§ 22.24 Permits for falconry purposes.

(a) Use of golden eagles in falconry. If you meet the conditions outlined in § 21.29 (c)(3)(iv) of this part, and you have a permit to possess a golden eagle (Aquila chrysaetos) from your State, tribe, or territory, we consider your permit sufficient for the purposes of the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d), subject to the requirement that take of golden eagles for falconry is compatible with the preservation of the golden eagle.


(b) Transfer of golden eagles trapped by government employees to other permittees. If you have the necessary permit(s) from your State, tribe, or territory, a government employee who has trapped a golden eagle under a Federal depredation permit or under a depredation control order may transfer the bird to you if he or she cannot release the eagle in an appropriate location. A golden eagle may only be taken from a livestock or wildlife depredation area declared by USDA Wildlife Services and permitted under § 22.23, or from a livestock depredation area authorized in accordance with Subpart D, Depredation Control Orders on Golden Eagles.


[73 FR 59477, Oct. 8, 2008, as amended at 75 FR 932, Jan. 7, 2010]


§ 22.25 What are the requirements concerning permits to take golden eagle nests?

The Director may, upon receipt of an application and in accordance with the issuance criteria of this section, issue a permit authorizing any person to take alternate golden eagle nests during a resource development or recovery operation if the taking is compatible with the preservation of golden eagles. The information collection requirements contained within this section have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance number 1018-0022. This information is being collected to provide information necessary to evaluate permit applications. This information will be used to review permit applications and make decisions, according to the criteria established in this section for the issuance or denial of such permits. The obligation to respond is required to obtain or retain a permit.


(a) How do I apply for a permit to take golden eagle nests? You must submit applications for permits to take golden eagle nests to the appropriate Regional Director – Attention: Migratory Bird Permit Office. You can find addresses for the appropriate Regional Directors in 50 CFR 2.2. We will only accept applications if you are engaged in a resource development or recovery operation, including the planning and permitting stages of an operation. Your application must contain the general information and certification required by § 13.12(a) of this chapter plus the following additional information:


(1) A description of the resource development or recovery operation in which the applicant is engaged.


(2) The number of golden eagle nests proposed to be taken.


(3) A description of the property on which the taking is proposed, with reference made to its exact geographic location. An appropriately scaled map or plat must be included which delineates the area of the resource development or recovery operation and identifies the exact location of each golden eagle nest proposed to be taken. The map or plat must contain enough detail so that each golden eagle nest proposed to be taken can be readily located by the Service.


(4) Nest and territory occupancy data. (i) For each golden eagle nest proposed to be taken, the applicant must identify on an appropriately scaled map or plat the exact location of each golden eagle nest in the nesting territory. The map or plat must contain enough details so that each golden eagle nest can be readily located by the Service.


(ii) A description of the monitoring that was done to verify that eagles are not attending the nest for breeding purposes, and any additional available documentation used in identifying which nests within the territory were in-use nests in current and past breeding seasons.


(5) A description of each activity to be performed during the resource development or recovery operation which involves the taking of a golden eagle nest.


(6) The length of time for which the permit is requested, including the dates on which the proposed resource development or recovery operation is to begin and end.


(7) A statement indicating the intended disposition of each nest proposed to be taken. Applicants should state whether they are willing to collect any nest for scientific or educational purposes.


(8) A statement indicating any proposed mitigation measures that are compatible with the resource development or recovery operation to encourage golden eagles to reoccupy the resource development or recovery site. Mitigation measures may include reclaiming disturbed land to enhance golden eagle nesting and foraging habitat, relocating in suitable habitat any inactive golden eagle nest taken, or establishing one or more nest sites. If the establishment of one or more nest sites is proposed, a description of the materials and methods to be used and the exact location of each artificial nest site must be included.


(b) Additional permit conditions. In addition to the general conditions set forth in part 13 of this chapter, permits to take golden eagle nests are subject to the following additional conditions:


(1) Only alternate golden eagle nests may be taken;


(2) The permittee shall submit a report of activities conducted under the permit to the Director within ten (10) days following the permit’s expiration;


(3) The permittee shall notify the Director in writing at least 10 days but not more than 30 days before any golden eagle nest is taken;


(4) The permittee must comply with any mitigation and monitoring measures determined by the Director to be practicable and compatible with the resource development or recovery operation; and


(5) Any permit issued before the commencement of a resource development or recovery operation is invalid if the activity which required a permit is not performed.


(c) Issuance criteria. The Director shall conduct an investigation and not issue a permit to take any golden eagle nest unless such taking is compatible with the preservation of golden eagles. In making such determination, the Director shall consider the following:


(1) Whether the applicant can reasonably conduct the resource development or recovery operation in a manner that avoids taking any golden eagle nest;


(2) The total number of golden eagle nests proposed to be taken;


(3) Whether suitable golden eagle nesting and foraging habitat unaffected by the resource development or recovery operation is available to accommodate any golden eagles displaced by the resource development or recovery operation; and


(4) Whether practicable mitigation measures compatible with the resource development or recovery operation are available to encourage reoccupation by golden eagles of the resource development or recovery site. Mitigation measures may include, but are not limited to, reclaiming disturbed land to enhance golden eagle nesting and foraging habitat, relocating in suitable habitat any golden eagle nest taken, or establishing one or more nest sites.


(d) Tenure of permits. The tenure of any permit to take golden eagle nests is 2 years from the date of issuance, unless a shorter period of time is prescribed on the face of the permit. Permits may be renewed in accordance with part 13 of this chapter.


[48 FR 57300, Dec. 29, 1983, as amended at 63 FR 52638, Oct. 1, 1998; 64 FR 50474, Sept. 17, 1999; 81 FR 91550, Dec. 16, 2016]


§ 22.26 Permits for eagle take that is associated with, but not the purpose of, an activity.

(a) Purpose and scope. This permit authorizes take of bald eagles and golden eagles where the take is compatible with the preservation of the bald eagle and the golden eagle; is necessary to protect an interest in a particular locality; is associated with, but not the purpose of, the activity; and cannot practicably be avoided.


(b) Definitions. In addition to the definitions contained in part 10 of this subchapter, and § 22.3, the following definition applies in this section:


Eagle means a live bald eagle (Haliaeetus leucocephalus), live golden eagle (Aquila chrysaetos), a bald eagle egg, or a golden eagle egg.


(c) Permit conditions. In addition to the conditions set forth in part 13 of this subchapter, which govern permit renewal, amendment, transfer, suspension, revocation, and other procedures and requirements for all permits issued by the Service, your authorization is subject to the following additional conditions:


(1) You must comply with all avoidance, minimization, or other mitigation measures specified in the terms of your permit to mitigate for the detrimental effects on eagles, including indirect and cumulative effects, of the permitted take.


(i) Compensatory mitigation scaled to project impacts will be required for any permit authorizing take that would exceed the applicable eagle management unit take limits. Compensatory mitigation for this purpose must ensure the preservation of the affected eagle species by reducing another ongoing form of mortality by an amount equal to or greater than the unavoidable mortality, or increasing the eagle population by an equal or greater amount.


(ii) Compensatory mitigation may also be required in the following circumstances:


(A) When cumulative authorized take, including the proposed take, would exceed 5 percent of the local area population; or


(B) When available data indicate that cumulative unauthorized mortality would exceed 10 percent of the local area population.


(iii) All required compensatory mitigation must:


(A) Be determined based on application of all practicable avoidance and minimization measures;


(B) Be sited within the same eagle management unit where the permitted take will occur unless the Service has reliable data showing that the population affected by the take includes individuals that are reasonably likely to use another eagle management unit during part of their seasonal migration;


(C) Use the best available science in formulating and monitoring the long-term effectiveness of mitigation measures and use rigorous compliance and effectiveness monitoring and evaluation to make certain that mitigation measures achieve their intended outcomes, or that necessary changes are implemented to achieve them;


(D) Be additional and improve upon the baseline conditions of the affected eagle species in a manner that is demonstrably new and would not have occurred without the compensatory mitigation (voluntary actions taken in anticipation of meeting compensatory mitigation requirements for an eagle take permit not yet granted may be credited toward compensatory mitigation requirements);


(E) Be durable and, at a minimum, maintain its intended purpose for as long as impacts of the authorized take persist; and


(F) Include mechanisms to account for and address uncertainty and risk of failure of a compensatory mitigation measure.


(iv) Compensatory mitigation may include conservation banking, in-lieu fee programs, and other third-party mitigation projects or arrangements. Permittee-responsible mitigation may be approved provided the permittee submits verifiable documentation sufficient to demonstrate that the standards set forth in paragraph (c)(1)(iii) of this section have been met and the alternative means of compensatory mitigation will offset the permitted take to the degree that is compatible with the preservation of eagles.


(2) Monitoring. (i) You may be required to monitor impacts to eagles from the permitted activity for up to 3 years after completion of the activity or as set forth in a separate management plan, as specified on your permit. For ongoing activities and enduring site features that will likely continue to cause take, periodic monitoring will be required for as long as the data are needed to assess impacts to eagles.


(ii) The frequency and duration of required monitoring will depend on the form and magnitude of the anticipated take and the objectives of associated avoidance, minimization, or other mitigation measures, not to exceed what is reasonable to meet the primary purpose of the monitoring, which is to provide data needed by the Service regarding the impacts of the activity on eagles for purposes of adaptive management. You must coordinate with the Service to develop project-specific monitoring protocols. If the Service has officially issued or endorsed, through rulemaking procedures, monitoring protocols for the activity that will take eagles, you must follow them, unless the Service waives this requirement. Your permit may require that the monitoring be conducted by qualified, independent third parties that report directly to the Service.


(3) You must submit an annual report summarizing the information you obtained through monitoring to the Service every year that your permit is valid and for up to 3 years after completion of the activity or termination of the permit, as specified in your permit. The Service will make eagle mortality information from annual reports available to the public.


(4) While the permit is valid and for up to 3 years after it expires, you must allow Service personnel, or other qualified persons designated by the Service, access to the areas where eagles are likely to be affected, at any reasonable hour, and with reasonable notice from the Service, for purposes of monitoring eagles at the site(s).


(5) The authorizations granted by permits issued under this section apply only to take that results from activities conducted in accordance with the description contained in the permit application and the terms of the permit. If the permitted activity changes after a permit is issued, you must immediately contact the Service to determine whether a permit amendment is required in order to retain take authorization.


(6) You must contact the Service immediately upon discovery of any unanticipated take.


(7) Additional conditions for permits with durations longer than 5 years – (i) Monitoring. Monitoring to assess project impacts to eagles and the effectiveness of avoidance and minimization measures must be conducted by qualified, independent third parties, approved by the Service. Monitors must report directly to the Service and provide a copy of the reports and materials to the permittee.


(ii) Adaptive management. The permit will specify circumstances under which modifications to avoidance, minimization, or compensatory mitigation measures or monitoring protocols will be required, which may include, but are not limited to: Take levels, location of take, and changes in eagle use of the activity area. At a minimum, the permit must specify actions to be taken if take approaches or reaches the amount authorized and anticipated within a given time frame. Adaptive management terms in a permit will include review periods of no more than 5 years and may require prompt action(s) upon reaching specified conditions at any time during the review period.


(iii) Permit reviews. At no more than 5 years from the date a permit that exceeds 5 years is issued, and at least every 5 years thereafter, the permittee will compile, and submit to the Service, eagle fatality data or other pertinent information that is site-specific for the project, as required by the permit. The Service will review this information, as well as information provided directly to the Service by independent monitors, to determine whether:


(A) The permittee is in compliance with the terms and conditions of the permit and has implemented all applicable adaptive management measures specified in the permit; and


(B) Eagle take does not exceed the amount authorized to occur within the period of review.


(iv) Actions to be taken based on the permit review. (A) In consultation with the permittee, the Service will update fatality predictions, authorized take levels and compensatory mitigation for future years, taking into account the observed levels of take based on approved protocols for monitoring and estimating total take, and, if applicable, accounting for changes in operations or permit conditions pursuant to the adaptive management measures specified in the permit or made pursuant to paragraphs (c)(7)(iv)(B) through (D) of this section.


(B) If authorized take levels for the period of review are exceeded in a manner or to a degree not addressed in the adaptive management conditions of the permit, based on the observed levels of take using approved protocols for monitoring and estimating total take, the Service may require additional actions including but not limited to:


(1) Adding, removing, or adjusting avoidance, minimization, or compensatory mitigation measures;


(2) Modifying adaptive management conditions;


(3) Modifying monitoring requirements; and


(4) Suspending or revoking the permit in accordance with part 13 of this subchapter B.


(C) If the observed levels of take, using approved protocols for monitoring and estimating total take, are below the authorized take levels for the period of review, the Service will proportionately revise the amount of compensatory mitigation required for the next period of review, including crediting excess compensatory mitigation already provided by applying it to the next period of review.


(D) Provided the permittee implements all required actions and remains compliant with the terms and conditions of the permit, no other action is required. However, with consent of the permittee, the Service may make additional changes to a permit, including appropriate modifications to avoidance and/or minimization measures or monitoring requirements. If measures are adopted that have been shown to be effective in reducing risk to eagles, appropriate adjustments will be made in fatality predictions, take estimates, and compensatory mitigation.


(v) Fees. For permits with terms longer than 5 years, an administration fee of $8,000 will be assessed every 5 years for permit review.


(8) The Service may amend, suspend, or revoke a permit issued under this section if new information indicates that revised permit conditions are necessary, or that suspension or revocation is necessary, to safeguard local or regional eagle populations. This provision is in addition to the general criteria for amendment, suspension, and revocation of Federal permits set forth in §§ 13.23, 13.27, and 13.28 of this chapter.


(9) Notwithstanding the provisions of § 13.26 of this chapter, you remain responsible for all outstanding monitoring requirements and mitigation measures required under the terms of the permit for take that occurs prior to cancellation, expiration, suspension, or revocation of the permit.


(10) You must promptly notify the Service of any eagle(s) found injured or dead at the activity site, regardless of whether the injury or death resulted from your activity. The Service will determine the disposition of such eagles.


(11) You are responsible for ensuring that the permitted activity is in compliance with all Federal, Tribal, State, and local laws and regulations applicable to eagles.


(d) Applying for an eagle take permit. (1) You are advised to coordinate with the Service as early as possible for advice on whether a permit is needed and for technical assistance in assembling your permit application package. The Service may provide guidance on developing complete and adequate application materials and will determine when the application form and materials are ready for submission.


(2) Your application must consist of a completed application Form 3-200-71 and all required attachments. Send applications to the Regional Director of the Region in which the take would occur – Attention: Migratory Bird Permit Office. You can find the current addresses for the Regional Directors in § 2.2 of subchapter A of this chapter.


(3) Except as set forth in paragraph (d)(3)(ii) of this section, an applicant must coordinate with the Service to develop project-specific monitoring and survey protocols, take probability models, and any other applicable data quality standards, and include in the application all the data thereby obtained.


(i) If the Service has officially issued or endorsed, through rulemaking procedures, survey, modeling, or other data quality standards for the activity that will take eagles, you must follow them and include in your application all the data thereby obtained, unless the Service waives this requirement for your application.


(ii) Applications for eagle incidental take permits for wind facilities must include pre-construction eagle survey information collected according to the following standards, unless exceptional circumstances apply and survey requirements can be modified to accommodate those circumstances after consultation with, and written concurrence by, the Service:


(A) Surveys must consist of point-based recordings of bald eagle and golden eagle flight activity (minutes of flight) within a three-dimensional cylindrical plot (the sample plot). The radius of the sample plot is 2,625 feet (ft) (800 meters (m)), and the height above ground level must be either 656 ft (200 m) or 82 ft (25 m) above the maximum blade reach, whichever is greater.


(B) The duration of the survey for each visit to each sample plot must be at least 1 hour.


(C) Sampling must include at least 12 hours per sample plot per year for 2 or more years. Each sample plot must be sampled at least once per month, and the survey start time for a sampling period must be selected randomly from daylight hours,
1
unless the conditions in paragraph (d)(3)(ii)(F) of this section apply.




1 Daylight hours are defined as the hours between sunrise and sunset.


(D) Sampling design must be spatially representative of the project footprint,
2
and spatial coverage of sample plots must include at least 30 percent of the project footprint. Sample plot locations must be determined randomly, unless the conditions in paragraph (d)(3)(ii)(F) of this section apply.




2 The project footprint is the minimum-convex polygon that encompasses the wind-project area inclusive of the hazardous area around all turbines and any associated utility infrastructure, roads, etc.


(E) The permit application package must contain the following:


(1) Coordinates of each sample point in decimal degrees (specify projection/datum).


(2) The radius and height of each sample plot.


(3) The proportion of each three-dimensional sample plot that was observable from the sample point for each survey.


(4) Dates, times, and weather conditions for each survey, to include the time surveys at each sample point began and ended.


(5) Information for each survey on the number of eagles by species observed (both in flight and perched), and the amount of flight time (minutes) that each was in the sample plot area.


(6) The number of proposed turbines and their specifications, including brand/model, rotor diameter, hub height, and maximum blade reach (height), or the range of possible options.


(7) Coordinates of the proposed turbine locations in decimal degrees (specify projection/datum), including any alternate sites.


(F) Stratified-random sampling (a sample design that accounts for variation in eagle abundance by, for example, habitat, time of day, season) will often provide more robust, efficient sampling. Random sampling with respect to time of day, month, or project footprint can be waived if stratification is determined to be a preferable sampling strategy after consultation and approval in advance with the Service.


(iii) Application of the Service-endorsed data quality standards of paragraphs (d)(3)(i) and (ii) of this section may not be needed if:


(A) The Service has data of sufficient quality to predict the likely risk to eagles;


(B) Expediting the permit process will benefit eagles; or


(C) The Service determines the risk to eagles from the activity is low enough relative to the status of the eagle population based on:


(1) Physiographic and biological factors of the project site; or


(2) The project design (i.e., use of proven technology, micrositing, etc.).


(e) Evaluation of applications. In determining whether to issue a permit, we will evaluate:


(1) Whether take is likely to occur based on the magnitude and nature of the impacts of the activity.


(2) Whether the take is:


(i) Compatible with the preservation of the bald eagle and the golden eagle, including consideration of indirect effects and the cumulative effects of other permitted take and other additional factors affecting eagle populations;


(ii) Associated with the permanent loss of an important eagle use area;


(iii) Necessary to protect a legitimate interest in a particular locality; and


(iv) Associated with, but not the purpose of, the activity.


(3) Whether the cumulative authorized take, including the proposed take, would exceed 5 percent of the local area population.


(4) Any available data indicating that unauthorized take may exceed 10 percent of the local area population.


(5) Whether the applicant has proposed all avoidance and minimization measures to reduce the take to the maximum degree practicable relative to the magnitude of the impacts to eagles.


(6) Whether the applicant has proposed compensatory mitigation measures that comply with standards set forth under paragraph (c)(1) of this section to compensate for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied.


(7) Whether issuing the permit would preclude the Service from authorizing another take necessary to protect an interest of higher priority, according to the following prioritization order:


(i) Safety emergencies;


(ii) Increased need for traditionally practiced Native American tribal religious use that requires taking eagles from the wild;


(iii) Non-emergency activities necessary to ensure public health and safety; and


(iv) Other interests.


(8) For projects that are already operational and have taken eagles without a permit, whether such past unpermitted eagle take has been resolved or is in the process of resolution with the Office of Law Enforcement through settlement or other appropriate means.


(9) Any additional factors that may be relevant to our decision whether to issue the permit, including, but not limited to, the cultural significance of a local eagle population.


(f) Required determinations. Before we issue a permit, we must find that:


(1) The direct and indirect effects of the take and required mitigation, together with the cumulative effects of other permitted take and additional factors affecting the eagle populations within the eagle management unit and the local area population, are compatible with the preservation of bald eagles and golden eagles.


(2) The taking is necessary to protect an interest in a particular locality.


(3) The taking is associated with, but not the purpose of, the activity.


(4) The applicant has applied all appropriate and practicable avoidance and minimization measures to reduce impacts to eagles.


(5) The applicant has applied all appropriate and practicable compensatory mitigation measures, when required, pursuant to paragraph (c) of this section, to compensate for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied.


(6) Issuance of the permit will not preclude issuance of another permit necessary to protect an interest of higher priority as set forth in paragraph (e)(7) of this section.


(7) Issuance of the permit will not interfere with an ongoing civil or criminal action concerning unpermitted past eagle take at the project.


(g) We may deny issuance of a permit if we determine that take is not likely to occur.


(h) Permit duration. The duration of each permit issued under this section will be designated on its face and will be based on the duration of the proposed activities, the period of time for which take will occur, the level of impacts to eagles, and the nature and extent of mitigation measures incorporated into the terms and conditions of the permit. A permit for incidental take will not exceed 30 years.


(i) Applicants for eagle incidental take permits who submit a completed permit application by July 14, 2017 may elect to apply for coverage under the regulations that were in effect prior to January 17, 2017 provided that the permit application satisfies the permit application requirements of the regulations in effect prior to January 17, 2017. If the Service issues a permit to such applicants, all of the provisions and conditions of the regulations that were in effect prior to January 17, 2017 will apply.


[74 FR 46877, Sept. 11, 2009, as amended at 79 FR 73725, Dec. 9, 2013; 81 FR 8004, Feb. 17, 2016; 81 FR 91551, Dec. 16, 2016]


§ 22.27 Removal of eagle nests.

(a) Purpose and scope. (1) A permit may be issued under this section to authorize removal or relocation of:


(i) An in-use or alternate nest where necessary to alleviate an existing safety emergency, or to prevent a rapidly developing safety emergency that is otherwise likely to result in bodily harm to humans or eagles while the nest is still in use by eagles for breeding purposes;


(ii) An alternate nest when the removal is necessary to ensure public health and safety;


(iii) An alternate nest, or an in-use nest prior to egg-laying, that is built on a human-engineered structure and creates, or is likely to create, a functional hazard that renders the structure inoperable for its intended use; or


(iv) An alternate nest, provided the take is necessary to protect an interest in a particular locality and the activity necessitating the take or the mitigation for the take will, with reasonable certainty, provide a net benefit to eagles.


(2) Where practicable and biologically warranted, the permit may require a nest to be relocated, or a substitute nest provided, in a suitable site within the same territory to provide a viable nesting option for eagles within that territory, unless such relocation would create a threat to safety. However, we may issue permits to remove nests that we determine cannot or should not be relocated. The permit may authorize take of eggs or nestlings if present. The permit may also authorize the take of adult eagles (e.g., disturbance or capture) associated with the removal or relocation of the nest.


(3) A permit may be issued under this section to cover multiple nest takes over a period of up to 5 years, provided the permittee complies with comprehensive measures developed in coordination with the Service to minimize the need to remove nests and specified as conditions of the permit.


(4) This permit does not authorize intentional, lethal take of eagles.


(b) Conditions.

(1) The permit does not authorize take of in-use nests except:


(i) For safety emergencies as provided under paragraph (a)(1)(i) of this section; or


(ii) Prior to egg-laying if the in-use nest is built on a human-engineered structure and meets the provisions set forth in paragraph (a)(1)(iii) of this section.


(2) When an in-use nest must be removed under this permit, any take of nestlings or eggs must be conducted by a Service-approved, qualified agent. All nestlings and viable eggs must be immediately transported to foster/recipient nests or a rehabilitation facility permitted to care for eagles, as directed by the Service, unless the Service waives this requirement.


(3) Possession of the nest for any purpose other than removal or relocation is prohibited without a separate permit issued under this part authorizing such possession.


(4) You must submit a report consisting of a summary of the activities conducted under the permit to the Service within 30 days after the permitted take occurs, except that for programmatic permits, you must report each nest removal within 10 days after the take and submit an annual report by January 31 containing all the information required in Form 3-202-16 for activities conducted during the preceding calendar year.


(5) You may be required to monitor the area and report whether eagles attempt to build or occupy another nest at another site in the vicinity for the duration specified in the permit.


(6) You may be required under the terms of the permit to harass eagles from the area following the nest removal when the Service determines it is necessary to prevent eagles from re-nesting in the vicinity.


(7) You must comply with all avoidance, minimization, or other mitigation measures specified in the terms of your permit to mitigate for the detrimental effects on eagles, including indirect and cumulative effects, of the permitted take.


(8) Compensatory mitigation scaled to project impacts will be required for any permit authorizing take that would exceed the applicable eagle management unit take limits. Compensatory mitigation must conform to the standards set forth at § 22.26(c)(1)(iii). Compensatory mitigation may also be required in the following circumstances:


(i) When cumulative authorized take, including the proposed take, would exceed 5 percent of the local area population;


(ii) When available data indicate that cumulative unauthorized mortality would exceed 10 percent of the local area population; or


(iii) If the permitted activity does not provide a net benefit to eagles, you must apply appropriate and practicable compensatory mitigation measures as specified in your permit to provide a net benefit to eagles scaled to the effects of the nest removal.


(9) The Service may amend or revoke a programmatic permit issued under this section if new information indicates that revised permit conditions are necessary, or that suspension or revocation is necessary, to safeguard local or regional eagle populations.


(10) Notwithstanding the provisions of § 13.26 of this subchapter, you remain responsible for all outstanding monitoring requirements and mitigation measures required under the terms of the permit for take that occurs prior to cancellation, expiration, suspension, or revocation of the permit.


(11) You are responsible for ensuring that the permitted activity is in compliance with all Federal, Tribal, State, and local laws and regulations applicable to eagles.


(c) Applying for a permit to take eagle nests. (1) If the take is necessary to address an immediate threat to human or eagle safety, contact your local U.S. Fish and Wildlife Service Regional Migratory Bird Permit Office (http://www.fws.gov/permits/mbpermits/addresses.html) at the earliest possible opportunity to inform the Service of the emergency.


(2) Your application must consist of a completed application Form 3-200-72 and all required attachments. Send applications to the Regional Director of the Region in which the disturbance would occur – Attention: Migratory Bird Permit Office. You can find the current addresses for the Regional Directors in § 2.2 of subchapter A of this chapter.


(d) Evaluation of applications. In determining whether to issue a permit, we will evaluate:


(1) Whether the activity meets the requirements of paragraph (a)(1) of this section;


(2) The direct and indirect effects of the take and required mitigation, together with the cumulative effects of other permitted take and additional factors affecting eagle populations;


(3) Whether there is a practicable alternative to nest removal that will protect the interest to be served;


(4) Whether issuing the permit would preclude the Service from authorizing another take necessary to protect an interest of higher priority, as set forth in paragraph (e)(5) of this section;


(5) For take that is not necessary to alleviate an immediate safety emergency, whether suitable nesting and foraging habitat is available to accommodate eagles displaced by the nest removal; and


(6) Any additional factors that may be relevant to our decision whether to issue the permit, including, but not limited to, the cultural significance of a local eagle population.


(e) Required determinations. Before issuing a permit under this section, we must find that:


(1) The direct and indirect effects of the take and required mitigation, together with the cumulative effects of other permitted take and additional factors affecting eagle populations, are compatible with the preservation of the bald eagle or the golden eagle.


(2) For alternate nests:


(i) The take is necessary to ensure public health and safety;


(ii) The nest is built on a human-engineered structure and creates, or is likely to create, a functional hazard that renders the structure inoperable for its intended use; or


(iii) The take is necessary to protect an interest in a particular locality, and the activity necessitating the take or the mitigation for the take will, with reasonable certainty, provide a net benefit to eagles.


(3) For in-use nests prior to egg-laying, the nest is built on a human-engineered structure and creates, or is likely to create, a functional hazard that renders the structure inoperable for its intended use.


(4) For in-use nests, the take is necessary to alleviate an existing safety emergency, or to prevent a rapidly developing safety emergency that is otherwise likely to result in bodily harm to humans or eagles while the nest is still in use by eagles for breeding purposes.


(5) There is no practicable alternative to nest removal that would protect the interest to be served.


(6) Issuing the permit will not preclude the Service from authorizing another take necessary to protect an interest of higher priority, according to the following prioritization order:


(i) Safety emergencies;


(ii) Increased need for traditionally practiced Native American tribal religious use that requires taking eagles from the wild;


(iii) Non-emergency activities necessary to ensure public health and safety;


(iv) Resource development or recovery operations (under § 22.25, for golden eagle nests only); and


(v) Other interests.


(f) Tenure of permits. The tenure of any permit to take eagle nests under this section is set forth on the face of the permit and will not be longer than 5 years.


[74 FR 46877, Sept. 11, 2009, as amended at 81 FR 91553, Dec. 16, 2016]


§ 22.28 Permits for bald eagle take exempted under the Endangered Species Act.

(a) Purpose and scope. This permit authorizes take of bald eagles (Haliaeetus leucocephalus) in compliance with the terms and conditions of a section 7 incidental take statement under the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.; 50 CFR 402, Subpart B) issued prior to the effective date of 50 CFR 22.26.


(b) Issuance criteria. Before issuing you a permit under this section, we must find that you are in full compliance with the terms and conditions contained in the applicable ESA incidental take statement issued prior to the effective date of 50 CFR 22.26 for take of eagles, based on your certification and any other relevant information available to us, including, but not limited to, monitoring or progress reports required pursuant to your incidental take statement. The terms and conditions of the Eagle Act permit under this section, including any modified terms and conditions, must be compatible with the preservation of the bald eagle.


(c) Permit conditions. (1) You must comply with all terms and conditions of the incidental take statement issued under section 7 of the ESA, or modified measures specified in the terms of your permit issued under this section. At permit issuance or at any time during its tenure, the Service may modify the terms and conditions that were included in your ESA incidental take statement, based on one or more of the following factors:


(i) You requested and received modified measures because some of the requirements for take authorization under the ESA were not necessary for take authorization under the Eagle Act;


(ii) The amount or extent of incidental take authorized under the take statement is exceeded;


(iii) New information reveals effects of the action that may affect eagles in a manner or to an extent not previously considered, and requires modification of the terms and conditions to ensure the preservation of the bald eagle or the golden eagle; or


(iv) The activity will be modified by the permittee in a manner that causes effects to eagles that were not previously considered and which requires modification of the terms and conditions in the incidental take statement in order to ensure the preservation of the bald eagle or the golden eagle.


(2) During any period when the eagles covered by your incidental take statement are listed under the ESA, you must comply with the terms and conditions of both the incidental take statement and the permit issued under this section.


(d) Permit duration. The permit will be valid until the action that will take eagles, as described in the incidental take statement or modified to condition the permit issued under this section, is completed, as long as the permittee complies with the terms and conditions of the permit, including any modified terms and conditions.


(e) Applying for an eagle take permit. (1) Your application must consist of a copy of the applicable section 7 incidental take statement issued pursuant to the Endangered Species Act (ESA), and a signed certification that you are in full compliance with all terms and conditions of the ESA incidental take statement.


(2) If you request reevaluation of the terms and conditions required under your previously granted ESA incidental take statement for eagles, you must include a description of the modifications you request, and an explanation for why you believe the original conditions or measures are not reasonably justified to offset the detrimental impact of the permitted activity on eagles.


(3) Send completed permit applications to the Regional Director of the Region in which the disturbance would occur – Attention: Migratory Bird Permit Office. You can find the current addresses for the Regional Directors in § 2.2 of subchapter A of this chapter.


[73 FR 29083, May 20, 2008; 74 FR 46879, Sept. 11, 2009]


Subpart D – Depredation Control Orders on Golden Eagles

§ 22.31 Golden eagle depredations control order on request of Governor of a State.

(a) Whenever the Governor of any State requests permission to take golden eagles to seasonally protect domesticated flocks and herds in such State, the Director shall make an investigation and if he determines that such taking is necessary to and will seasonally protect domesticated flocks and herds in such States he shall authorize such taking in whatever part or parts of the State and for such periods as he determines necessary to protect such interests.


(b) Requests from the Governor of a State to take golden eagles to seasonally protect domesticated flocks and herds must be submitted in writing to the Director listing the periods of time during which the taking of such birds is recommended, and including a map of the State indicating the boundaries of the proposed area of taking. Such requests should include a statement of the facts and the source of such facts that in the Governor’s opinion justifies the request. After a decision by the Director, the Governor will be advised in writing concerning the request and a notice will be published in the Federal Register.


§ 22.32 Conditions and limitations on taking under depredation control order.

(a) Whenever the taking of golden eagles without a permit is authorized for the seasonal protection of livestock, such birds may be taken by firearms, traps, or other suitable means except by poison or from aircraft.


(b) Any person exercising any of the privileges granted by this subpart D must permit all reasonable times, including during actual operations, any Service agent, or other game law enforcement officer free and unrestricted access over the premises on which such operations have been or are being conducted; and shall furnish promptly to such officer whatever information he may require concerning such operations.


(c) The authority to take golden eagles under a depredations control order issued pursuant to this subpart D only authorizes the taking of golden eagles when necessary to seasonally protect domesticated flocks and herds, and all such birds taken must be reported and turned over to a local Bureau Agent.


PART 23 – CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA (CITES)


Authority:Convention on International Trade in Endangered Species of Wild Fauna and Flora (March 3, 1973), 27 U.S.T. 1087; and Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.


Source:72 FR 48448, Aug. 23, 2007, unless otherwise noted.

Subpart A – Introduction

§ 23.1 What are the purposes of these regulations and CITES?

(a) Treaty. The regulations in this part implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora, also known as CITES, the Convention, the Treaty, or the Washington Convention, TIAS (Treaties and Other International Acts Series) 8249.


(b) Purpose. The aim of CITES is to regulate international trade in wildlife and plants, including parts, products, and derivatives, to ensure it is legal and does not threaten the survival of species in the wild. Parties, recognize that:


(1) Wildlife and plants are an irreplaceable part of the natural systems of the earth and must be protected for this and future generations.


(2) The value of wildlife and plants is ever-growing from the viewpoints of aesthetics, science, culture, recreation, and economics.


(3) Although countries should be the best protectors of their own wildlife and plants, international cooperation is essential to protect wildlife and plant species from over-exploitation through international trade.


(4) It is urgent that countries take appropriate measures to prevent illegal trade and ensure that any use of wildlife and plants is sustainable.


(c) National legislation. We, the U.S. Fish and Wildlife Service (FWS), implement CITES through the Endangered Species Act (ESA).


§ 23.2 How do I decide if these regulations apply to my shipment or me?

If you are engaging in activities with specimens of CITES-listed species these regulations apply to you.


[79 FR 30419, May 27, 2014]


§ 23.3 What other wildlife and plant regulations may apply?

(a) You may need to comply with other regulations in this subchapter that require a permit or have additional restrictions. Many CITES species are also covered by one or more parts of this subchapter or title and have additional requirements:


(1) Part 15 (exotic birds).


(2) Part 16 (injurious wildlife).


(3) Parts 17 of this subchapter and 222, 223, and 224 of this title (endangered and threatened species).


(4) Parts 18 of this subchapter and 216 of this title (marine mammals).


(5) Part 20 (migratory bird hunting).


(6) Part 21 (migratory birds).


(7) Part 22 (bald and golden eagles).


(b) If you are applying for a permit, you must comply with the general permit procedures in part 13 of this subchapter. Definitions and a list of birds protected under the Migratory Bird Treaty Act can be found in part 10 of this subchapter.


(c) If you are importing (including introduction from the sea), exporting, or re-exporting wildlife or plants, you must comply with the regulations in part 14 of this subchapter for wildlife or part 24 of this subchapter for plants. Activities with plants are also regulated by the U.S. Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) and Department of Homeland Security, U.S. Customs and Border Protection (CBP), in 7 CFR parts 319, 355, and 356.


(d) You may also need to comply with other Federal, State, tribal, or local requirements.


§ 23.4 What are Appendices I, II, and III?

Species are listed by the Parties in one of three Appendices to the Treaty (see subpart H of this part), each of which provides a different level of protection and is subject to different requirements. Parties regulate trade in specimens of Appendix-I, -II, and -III species and their parts, products, and derivatives through a system of permits and certificates (CITES documents). Such documents enable Parties to monitor the effects of the volume and type of trade to ensure trade is legal and not detrimental to the survival of the species.


(a) Appendix I includes species threatened with extinction that are or may be affected by trade. Trade in Appendix-I specimens may take place only in exceptional circumstances.


(b) Appendix II includes species that are not presently threatened with extinction, but may become so if their trade is not regulated. It also includes species that need to be regulated so that trade in certain other Appendix-I or -II species may be effectively controlled; these species are most commonly listed due to their similarity of appearance to other related CITES species.


(c) Appendix III includes species listed unilaterally by a range country to obtain international cooperation in controlling trade.


§ 23.5 How are the terms used in these regulations defined?

In addition to the definitions contained in part 10 of this subchapter, and unless the context otherwise requires, in this part:


Affected by trade means that either a species is known to be in trade and the trade has or may have a detrimental impact on the status of the species, or a species is suspected to be in trade or there is demonstrable potential international demand for the species that may be detrimental to the survival of the species in the wild.


Annotation means an official footnote to the listing of a species in the CITES Appendices. A reference annotation provides information that further explains the listing (such as “p.e.” for possibly extinct). A substantive annotation is an integral part of a species listing. It designates whether the listing includes or excludes a geographically separate population, subspecies, species, group of species, or higher taxon, and the types of specimens included in or excluded from the listing, such as certain parts, products, or derivatives. A substantive annotation may designate export quotas adopted by the CoP. For species transferred from Appendix I to II subject to an annotation relating to specified types of specimens, other types of specimens that are not specifically included in the annotation are treated as if they are Appendix-I specimens.


Appropriate and acceptable destination, when used in an Appendix-II listing annotation for the export of, or international trade in, live animals, means that the Management Authority of the importing country has certified, based on advice from the Scientific Authority of that country, that the proposed recipient is suitably equipped to house and care for the animal (see criteria in § 23.65). Such certification must be provided before a CITES document is issued by the Management Authority of the exporting or re-exporting country.


Artificially propagated means a cultivated plant that meets the criteria in § 23.64.


ATA carnet means a type of international customs document (see § 23.50). ATA is a combination of the French and English words “Admission Temporaire/Temporary Admission.”


Bred for commercial purposes means any specimen of an Appendix-I wildlife species bred in captivity for commercial purposes. Any Appendix-I specimen that does not meet the definition of “bred for noncommercial purposes” is considered to be bred for commercial purposes.


Bred for noncommercial purposes means any specimen of an Appendix-I wildlife species bred in captivity for noncommercial purposes, where each donation, exchange, or loan of the specimen is noncommercial.


Bred in captivity means wildlife that is captive-bred and meets the criteria in § 23.63.


Captive-bred means wildlife that is the offspring (first (F1) or subsequent generations) of parents that either mated or otherwise transferred egg and sperm under controlled conditions if reproduction is sexual, or of a parent that was maintained under controlled conditions when development of the offspring began if reproduction is asexual, but does not meet the bred-in-captivity criteria (see § 23.63).


Certificate means a CITES document or CITES exemption document that identifies on its face the type of certificate it is, including re-export certificate, introduction-from-the-sea certificate, and certificate of origin.


CITES document or CITES exemption document means any certificate, permit, or other document issued by a Management Authority of a Party or a competent authority of a non-Party whose name and address is on file with the Secretariat to authorize the international movement of CITES specimens.


Commercial means related to an activity, including actual or intended import, export, re-export, sale, offer for sale, purchase, transfer, donation, exchange, or provision of a service, that is reasonably likely to result in economic use, gain, or benefit, including, but not limited to, profit (whether in cash or in kind).


Coral (dead) means pieces of stony coral that contain no living coral tissue and in which the structure of the corallites (skeletons of the individual polyps) is still intact and the specimens are therefore identifiable to the level of species or genus. See also § 23.23(c)(13).


Coral fragments, including coral gravel and coral rubble, means loose pieces of broken finger-like stony coral between 2 and 30 mm measured in all directions that contain no living coral tissue and are not identifiable to the level of genus (see § 23.92 for exemptions).


Coral (live) means pieces of stony coral that are alive and are therefore identifiable to the level of species or genus. See also § 23.23(c)(13).


Coral rock means hard consolidated material greater than 30 mm measured in any direction that consists of pieces of stony coral that contain no living coral tissue and possibly also cemented sand, coralline algae, or other sedimentary rocks. Coral rock includes live rock and substrate, which are terms for pieces of coral rock to which are attached live specimens of other invertebrate species or coralline algae that are not listed in the CITES Appendices. See also § 23.23(c)(13).


Coral sand means material that consists entirely or in part of finely crushed stony coral no larger than 2 mm measured in all directions that contains no living coral tissue and is not identifiable to the level of genus (see § 23.92 for exemptions).


Coral (stony) means any coral in the orders Helioporacea, Milleporina, Scleractinia, Stolonifera, and Stylasterina.


Country of origin means the country where the wildlife or plant was taken from the wild or was born or propagated in a controlled environment, except in the case of a plant specimen that qualified for an exemption under the provisions of CITES, the country of origin is the country in which the specimen ceased to qualify for the exemption.


Cultivar means a horticulturally derived plant variety that: has been selected for a particular character or combination of characters; is distinct, uniform, and stable in these characters; and when propagated by appropriate means, retains these characters. The cultivar name and description must be formally published in order to be recognized under CITES.


Cultivated means a plant grown or tended by humans for human use. A cultivated plant can be treated as artificially propagated under CITES only if it meets the criteria in § 23.64.


Export means to send, ship, or carry a specimen out of a country (for export from the United States, see part 14 of this subchapter).


Flasked means plant material obtained in vitro, in solid or liquid media, transported in sterile containers.


Household effect means a dead wildlife or plant specimen that is part of a household move and meets the criteria in § 23.15.


Hybrid means any wildlife or plant that results from a cross of genetic material between two separate taxa when one or both are listed in Appendix I, II, or III. See § 23.42 for plant hybrids and § 23.43 for wildlife hybrids.


Import means to bring, ship, or carry a specimen into a country (for import into the United States, see part 14 of this subchapter).


International trade means the import, introduction from the sea, export, or re-export across jurisdictional or international boundaries for any purpose whether commercial or noncommercial.


In-transit shipment means the transshipment of any wildlife or plant through an intermediary country when the specimen remains under customs control and either the shipment meets the requirements of § 23.22 or the sample collection covered by an ATA carnet meets the requirements of § 23.50.


Introduction from the sea means transportation into a country of specimens of any species that were taken in the marine environment not under the jurisdiction of any country, i.e., taken in those marine areas beyond the areas subject to the sovereignty or sovereign rights of a country consistent with international law, as reflected in the United Nations Convention on the Law of the Sea.


ISO country code means the two-letter country code developed by the International Organization for Standardization (ISO) to represent the name of a country and its subdivisions.


Live rock see the definition for coral rock.


Management Authority means a governmental agency officially designated by, and under the supervision of, either a Party to implement CITES, or a non-Party to serve in the role of a Management Authority, including the issuance of CITES documents on behalf of that country.


Noncommercial means related to an activity that is not commercial. Noncommercial includes, but is not limited to, personal use.


Non-Party means a country that has not deposited an instrument of ratification, acceptance, approval, or accession to CITES with the Depositary Government (Switzerland), or a country that was a Party but subsequently notified the Depositary Government of its denunciation of CITES and the denunciation is in effect.


Offspring of first generation (F1) means a wildlife specimen produced in a controlled environment from parents at least one of which was conceived in or taken from the wild.


Offspring of second generation (F2) or subsequent generations means a wildlife specimen produced in a controlled environment from parents that were also produced in a controlled environment.


Parental stock means the original breeding or propagating specimens that produced the subsequent generations of captive or cultivated specimens.


Party means a country that has given its consent to be bound by the provisions of CITES by depositing an instrument of ratification, acceptance, approval, or accession with the Depositary Government (Switzerland), and for which such consent is in effect.


Permit means a CITES document that identifies on its face import permit or export permit.


Personal effect means a dead wildlife or plant specimen, including a tourist souvenir, that is worn as clothing or accessories or is contained in accompanying baggage and meets the criteria in § 23.15.


Personal use means use that is not commercial and is for an individual’s own consumption or enjoyment.


Precautionary measures means the actions taken that will be in the best interest of the conservation of the species when there is uncertainty about the status of a species or the impact of trade on the conservation of a species.


Pre-Convention means a specimen that was acquired (removed from the wild or born or propagated in a controlled environment) before the date the provisions of the Convention first applied to the species and that meets the criteria in § 23.45, and any product (including a manufactured item) or derivative made from such specimen.


Primarily commercial purposes means an activity whose noncommercial aspects do not clearly predominate (see § 23.62).


Propagule means a structure, such as a cutting, seed, or spore, which is capable of propagating a plant.


Ranched wildlife means specimens of animals reared in a controlled environment that were taken from the wild as eggs or juveniles where they would otherwise have had a very low probability of surviving to adulthood. See also § 23.34.


Readily recognizable means any specimen that appears from a visual, physical, scientific, or forensic examination or test; an accompanying document, packaging, mark, or label; or any other circumstances to be a part, product, or derivative of any CITES wildlife or plant, unless such part, product, or derivative is specifically exempt from the provisions of CITES or this part.


Re-export means to send, ship, or carry out of a country any specimen previously imported into that country, whether or not the specimen has been altered since import.


Reservation means the action taken by a Party to inform the Secretariat that it is not bound by the effect of a specific listing (see § 23.21).


Scientific Authority means a governmental or independent scientific institution or entity officially designated by either a Party to implement CITES, or a non-Party to serve the role of a Scientific Authority, including making scientific findings.


Secretariat means the entity designated by the Treaty to perform certain administrative functions (see § 23.84).


Shipment means any CITES specimen in international trade whether for commercial or noncommercial use, including any personal item.


Species means any species, subspecies, hybrid, variety, cultivar, color or morphological variant, or geographically separate population of that species.


Specimen means any wildlife or plant, whether live or dead. This term includes any readily recognizable part, product, or derivative unless otherwise annotated in the Appendices.


Sustainable use means the use of a species in a manner and at a level that maintains wild populations at biologically viable levels for the long term. Such use involves a determination of the productive capacity of the species and its ecosystem to ensure that utilization does not exceed those capacities or the ability of the population to reproduce, maintain itself, and perform its role or function in its ecosystem.


Trade means the same as international trade.


Transit see the definition for in-transit shipment.


Traveling exhibition means a display of live or dead wildlife or plants for entertainment, educational, cultural, or other display purposes that is temporarily moving internationally.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30419, May 27, 2014]


§ 23.6 What are the roles of the Management and Scientific Authorities?

Under Article IX of the Treaty, each Party must designate a Management and Scientific Authority to implement CITES for that country. If a non-Party wants to trade with a Party, it must also designate such Authorities. The names and addresses of these offices must be sent to the Secretariat to be included in the Directory. In the United States, different offices within the FWS have been designated the Scientific Authority and Management Authority, which for purposes of this section includes FWS Law Enforcement. When offices share activities, the Management Authority is responsible for dealing primarily with management and regulatory issues and the Scientific Authority is responsible for dealing primarily with scientific issues. The offices do the following:


Roles
U.S.

Scientific Authority
U.S. Management

Authority
(a) Provide scientific advice and recommendations, including advice on biological findings for applications for certain CITES documents, registrations, and export program approvals. Evaluate the conservation status of species to determine if a species listing or change in a listing is warranted. Interpret listings and review nomenclatural issues.x
(b) Review applications for CITES documents and issue or deny them based on findings required by CITES. x
(c) Communicate with the Secretariat and other countries on scientific, administrative, and enforcement issues.xx
(d) Ensure that export of Appendix-II specimens is at a level that maintains a species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which it might become eligible for inclusion in Appendix I.x
(e) Monitor trade in all CITES species and produce annual reports on CITES trade. x
(f) Collect the cancelled foreign export permit or re-export certificate and any corresponding import permit presented for import of any CITES specimen. Collect a copy of the validated U.S. export permit or re-export certificate presented for export or re-export of any CITES specimen. x
(g) Produce biennial reports on legislative, regulatory, and administrative measures taken by the United States to enforce the provisions of CITES. x
(h) Coordinate with State and tribal governments and other Federal agencies on CITES issues, such as the status of native species, development of policies, negotiating positions, and law enforcement activities.xx
(i) Communicate with the scientific community, the public, and media about CITES issues. Conduct public meetings and publish notices to gather input from the public on the administration of CITES and the conservation and trade status of domestic and foreign species traded internationally.xx
(j) Represent the United States at the meetings of the CoP, on committees (see subpart G of this part), and on CITES working groups. Consult with other countries on CITES issues and the conservation status of species. Prepare discussion papers and proposals for new or amended resolutions and species listings for consideration at the CoP.xx
(k) Provide assistance to APHIS and CBP for the enforcement of CITES. Cooperate with enforcement officials to facilitate the exchange of information between enforcement bodies and for training purposes.xx
(l) Provide financial and technical assistance to other governmental agencies and CITES officials of other countries.xx

§ 23.7 What office do I contact for CITES information?

Contact the following offices to receive information about CITES:


Type of information
Office to contact
(a) CITES administrative and management issues:

(1) CITES documents, including application forms and procedures; lists of registered scientific institutions and operations breeding Appendix-I wildlife for commercial purposes; and reservations

(2) Information on the CoP

(3) List of CITES species

(4) Names and addresses of other countries’ Management and Scientific Authority offices

(5) Notifications, resolutions, and decisions

(6) Standing Committee documents and issues

(7) State and tribal export programs
U.S. Management Authority, U.S. Fish and Wildlife Service Headquarters, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041-3803, Toll Free: (800) 358-2104/permit questions, Tel: (703) 358-2095/other questions, Fax: (703) 358-2281/permits, Fax: (703) 358-2298/other issues, Email: [email protected], Web site: http://www.fws.gov/international and http://www.fws.gov/permits.
(b) Scientific issues:

(1) Animals and Plants Committees documents and issues

(2) Findings of non-detriment and suitability of facilities, and other scientific findings

(3) Listing of species in the Appendices and relevant resolutions

(4) Names and addresses of other countries’ Scientific Authority offices and scientists involved with CITES-related issues

(5) Nomenclatural issues
U.S. Scientific Authority, U.S. Fish and Wildlife Service Headquarters, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041-3803, Tel: (703) 358-1708, Fax: (703) 358-2276, Email: [email protected], Web site: http://www.fws.gov/international.
(c) Wildlife clearance procedures:

(1) CITES replacement tags

(2) Information about wildlife port office locations

(3) Information bulletins

(4) Inspection and clearance of wildlife shipments involving import, introduction from the sea, export, and re-export, and filing a Declaration of Importation or Exportation of Fish or Wildlife (Form 3-177)

(5) Validation, certification, or cancellation of CITES wildlife documents
Law Enforcement, U.S. Fish and Wildlife Service Headquarters, MS: OLE, 5275 Leesburg Pike, Falls Church, VA 22041-3803, Tel: (703) 358-1949, Fax: (703) 358-2271, Web site: http://www.fws.gov/le.
(d) APHIS plant clearance procedures:

(1) Information about plant port office locations

(2) Inspection and clearance of plant shipments involving:

(i) Import and introduction from the sea of living plants

(ii) Export and re-export of living and nonliving plants

(3) Validation or cancellation of CITES plant documents for the type of shipments listed in paragraph (d)(2) of this section
U.S. Department of Agriculture APHIS/PPQ, 4700 River Road, Riverdale, Maryland 20737-1236, Toll Free: (877) 770-5990/permit questions, Tel: (301) 734-8891/other CITES issues, Fax: (301) 734-5786/permit questions, Fax: (301) 734-5276/other CITES issues, Website: http://www.aphis.usda.gov/plant_health
(e) CBP plant clearance procedures:

(1) Inspection and clearance of plant shipments involving:

(i) Import and introduction from the sea of nonliving plants

(ii) Import of living plants from Canada at designated border ports (7 CFR 319.37-14(b) and 50 CFR 24.12(d))

(2) Cancellation of CITES plant documents for the type of shipments listed in paragraph (e)(1) of this section
Department of Homeland Security, U.S. Customs and Border Protection, Office of Field Operations, Agriculture Programs and Liaison, 1300 Pennsylvania Avenue, NW, Room 2.5 B, Washington, DC 20229, Tel: (202) 344-3298, Fax: (202) 344-1442
(f) General information on CITES:

(1) CITES export quota information

(2) CITES’Guidelines for transport and preparation for shipment of live wild animals and plants

(3) Information about the Secretariat

(4) Names and addresses of other countries’ Management and Scientific Authority offices

(5) Official documents, including resolutions, decisions, notifications, CoP documents, and committee documents

(6) Official list of CITES species and species database

(7) Text of the Convention
CITES Secretariat, Website: http://www.cites.org

[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30420, May 27, 2014; 79 FR 43966, July 29, 2014]


§ 23.8 What are the information collection requirements?

The Office of Management and Budget approved the information collection requirements for application forms and reports contained in this part and assigned OMB Control Number 1018-0093. We cannot collect or sponsor a collection of information and you are not required to provide information unless it displays a currently valid OMB control number.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30420, May 27, 2014]


§ 23.9 Incorporation by reference.

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may inspect copies at the U.S. Management Authority, U.S. Fish and Wildlife Service Headquarters, MS. IA, 5275 Leesburg Pike, Falls Church, VA 22041-3803, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.


(b) International Air Transport Association (IATA), 800 Place Victoria, P.O. Box 113, Montreal, Quebec, Canada H4Z 1M1, 1-800-716-6326, http://www.iata.org.


(1) Live Animals Regulations (LAR) 40th edition, effective October 1, 2013, into §§ 23.23, 23.26, and 23.56.


(2) Perishable Cargo Regulations (PCR) 13th edition, effective July 1, 2013, into §§ 23.23, 23.26, and 23.56.


[79 FR 30420, May 27, 2014, as amended at 79 FR 43967, July 29, 2014]


Subpart B – Prohibitions, Exemptions, and Requirements

§ 23.13 What is prohibited?

Except as provided in § 23.92, it is unlawful for any person subject to the jurisdiction of the United States to conduct any of the following activities unless they meet the requirements of this part:


(a) Import, export, re-export, or engage in international trade with any specimen of a species listed in Appendix I, II, or III of CITES.


(b) Introduce from the sea any specimen of a species listed in Appendix I or II of CITES.


(c) Possess any specimen of a species listed in Appendix I, II, or III of CITES imported, exported, re-exported, introduced from the sea, or traded contrary to the provisions of CITES, the ESA, or this part.


(d) Use any specimen of a species listed in Appendix I, II, or III of CITES for any purpose contrary to what is allowed under § 23.55.


(e) Violate any other provisions of this part.


(f) Attempt to commit, solicit another to commit, or cause to be committed any of the activities described in paragraphs (a) through (e) of this section.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30420, May 27, 2014]


§ 23.14 [Reserved]

§ 23.15 How may I travel internationally with my personal or household effects, including tourist souvenirs?

(a) Purpose. Article VII(3) of the Treaty recognizes a limited exemption for the international movement of personal and household effects.


(b) Stricter national measures. The exemption for personal and household effects does not apply if a country prohibits or restricts the import, export, or re-export of the item.


(1) You or your shipment must be accompanied by any document required by a country under its stricter national measures.


(2) In the United States, you must obtain any permission needed under other regulations in this subchapter (see § 23.3).


(c) Required CITES documents. You must obtain a CITES document for personal or household effects and meet the requirements of this part if one of the following applies:


(1) The Management Authority of the importing, exporting, or re-exporting country requires a CITES document.


(2) You or your shipment does not meet all of the conditions for an exemption as provided in paragraphs (d) through (f) of this section.


(3) The personal or household effect for the following species exceeds the quantity indicated in paragraphs (c)(3)(i) through (vi) in the table below:


Major group
Species (Appendix II only)
Type of specimen
Quantity
1
Fishes(i) Acipenseriformes (sturgeon, including paddlefish)Sturgeon caviar (see § 23.71)125 gm
Fishes(ii) Hippocampus spp. (seahorses)Dead specimens, parts, products (including manufactured items), and derivatives4
Reptiles(iii) Crocodylia (alligators, caimans, crocodiles, gavial)Dead specimens, parts, products (including manufactured items), and derivatives4
Molluscs(iv) Strombus gigas (queen conch)Shells3
Molluscs(v) Tridacnidae (giant clams)Shells, each of which may be one intact shell or two matching halves3 shells, total not exceeding 3 kg
Plants(vi) Cactaceae (cacti)Rainsticks3


1 To import, export, or re-export more than the quantity listed in the table, you must have a valid CITES document for the entire quantity.


(d) Personal effects. You do not need a CITES document to import, export, or re-export any legally acquired specimen of a CITES species to or from the United States if all of the following conditions are met:


(1) No live wildlife or plant (including eggs or non-exempt seeds) is included.


(2) No specimen from an Appendix-I species is included, except for certain worked African elephant ivory as provided in paragraph (f) of this section.


(3) The specimen and quantity of specimens are reasonably necessary or appropriate for the nature of your trip or stay and, if the type of specimen is one listed in paragraph (c)(3) of this section, the quantity does not exceed the quantity given in the table.


(4) You own and possess the specimen for personal use, including any specimen intended as a personal gift.


(5) You are either wearing the specimen as clothing or an accessory or taking it as part of your personal baggage, which is being carried by you or checked as baggage on the same plane, boat, vehicle, or train as you.


(6) The specimen was not mailed or shipped separately.


(e) Household effects. You do not need a CITES document to import, export, or re-export any legally acquired specimen of a CITES species that is part of a shipment of your household effects when moving your residence to or from the United States, if all of the following conditions are met:


(1) The provisions of paragraphs (d)(1) through (3) of this section are met.


(2) You own the specimen and are moving it for personal use.


(3) You import or export your household effects within 1 year of changing your residence from one country to another.


(4) The shipment, or shipments if you cannot move all of your household effects at one time, contains only specimens purchased, inherited, or otherwise acquired before you changed your residence.


(f) African elephant worked ivory. You may export or re-export from the United States worked African elephant (Loxodonta africana) ivory and then re-import it without a CITES document if all of the following conditions are met:


(1) The worked ivory is a personal or household effect that meets the requirements of paragraphs (c) through (e) of this section and you are a U.S. resident who owned the worked ivory before leaving the United States and intend to bring the item back to the United States.


(2) The ivory is pre-Convention (see § 23.45). (The African elephant was first listed in CITES on February 26, 1976.)


(3) You may not sell or transfer the ivory while outside the United States.


(4) The ivory is substantially worked and is not raw. Raw ivory means an African elephant tusk, or any piece of tusk, the surface of which, polished or unpolished, is unaltered or minimally carved, including ivory mounted on a stand or part of a trophy.


(5) When you return, you are able to provide records, receipts, or other documents to show that the ivory is pre-Convention and that you owned and registered it before you left the United States. To register such an item you must obtain one of the following documents:


(i) U.S. CITES pre-Convention certificate.


(ii) FWS Declaration of Importation or Exportation of Fish or Wildlife (Form 3-177).


(iii) Customs and Border Protection Certificate of Registration for Personal Effects Taken Abroad (Form 4457).


[72 FR 48448, Aug. 23, 2007, as amended at 73 FR 40986, July 17, 2008]


§ 23.16 What are the U.S. CITES requirements for urine, feces, and synthetically derived DNA?

(a) CITES documents. We do not require CITES documents to trade in urine, feces, or synthetically derived DNA.


(1) You must obtain any collection permit and CITES document required by the foreign country.


(2) If the foreign country requires you to have a U.S. CITES document for these kinds of samples, you must apply for a CITES document and meet the requirements of this part.


(b) Urine and feces. Except as provided in paragraph (a) of this section, we consider urine and feces to be wildlife byproducts, rather than parts, products, or derivatives, and exempt them from the requirements of CITES and this part.


(c) DNA. We differentiate between DNA directly extracted from blood and tissue and DNA synthetically derived as follows:


(1) A DNA sample directly derived from wildlife or plant tissue is regulated by CITES and this part.


(2) A DNA sample synthetically derived that does not contain any part of the original template is exempt from the requirements of CITES and this part.


§ 23.17 What are the requirements for CITES specimens traded internationally by diplomatic, consular, military, and other persons exempt from customs duties or inspections?

A specimen of a CITES species imported, introduced from the sea, exported, or re-exported by a person receiving duty-free or inspection exemption privileges under customs laws must meet the requirements of CITES and the regulations in this part.


§ 23.18 What CITES documents are required to export Appendix-I wildlife?

Answer the questions in the following decision tree to find the section in this part that applies to the type of CITES document you need to export Appendix-I wildlife. See § 23.20(d) for CITES exemption documents or § 23.92 for specimens that are exempt from the requirements of CITES and do not need CITES documents.



[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30420, May 27, 2014]


§ 23.19 What CITES documents are required to export Appendix-I plants?

Answer the questions in the following decision tree to find the section in this part that applies to the type of CITES document you need to export Appendix-I plants. See § 23.20(d) for CITES exemption documents or § 23.92 for specimens that are exempt from the requirements of CITES and do not need CITES documents.



[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30420, May 27, 2014]


§ 23.20 What CITES documents are required for international trade?

(a) Purpose. Articles III, IV, and V of the Treaty give the types of standard CITES documents that must accompany an Appendix-I, -II, or -III specimen in international trade. Articles VII and XIV recognize some exemptions and provide that a CITES document must accompany most exempt specimens.


(b) Stricter national measures. Before importing, introducing from the sea, exporting, or re-exporting a specimen, check with the Management Authorities of all countries concerned to obtain any documentation required under stricter national measures.


(c) CITES documents. Except as provided in the regulations in this part, you must have a valid CITES document to engage in international trade in any CITES specimen.


(d) CITES exemption documents. The following table lists the CITES exemption document that you must obtain before conducting a proposed activity with an exempt specimen (other than specimens exempted under § 23.92). If one of the exemptions does not apply to the specimen, you must obtain a CITES document as provided in paragraph (e) of this section. The first column in the following table alphabetically lists the type of specimen or activity that may qualify for a CITES exemption document. The last column indicates the section of this part that contains information on the application procedures, provisions, criteria, and conditions specific to each CITES exemption document, as follows:


Type of specimen or activity
Appendix
CITES exemption document
Section
(1) Artificially propagated plant (see paragraph (d)(4) of this section for an Appendix-I plant propagated for commercial purposes)I, II, or IIICITES document with source code “A”
1
23.40
(2) Artificially propagated plant from a country that has provided copies of the certificates, stamps, and seals to the SecretariatII or IIIPhytosanitary certificate with CITES statement
1
23.23(f)
(3) Bred-in-captivity wildlife (see paragraph (d)(5) of this section for Appendix-I wildlife bred in captivity for commercial purposes)I, II, or IIICITES document with source code “C”
1
23.41
(4) Commercially propagated Appendix-I plantICITES document with source code “D”
1
23.47
(5) Commercially bred Appendix-I wildlife from a breeding operation registered with the CITES SecretariatICITES document with source code “D”
1
23.46
(6) Export of certain marine specimens protected under a pre-existing treaty, convention, or international agreement for that speciesIICITES document indicating that the specimen was taken in accordance with provisions of the applicable treaty, convention, or international agreement23.36(e)

23.39(e)
(7) Hybrid plantsI, II, or IIICITES document unless the specimen qualifies as an exempt plant hybrid23.42
(8) Hybrid wildlifeI, II, or IIICITES document unless the specimen qualifies as an exempt wildlife hybrid23.43
(9) In-transit shipment (see paragraph (d)(14) of this section for sample collections covered by an ATA carnet)I, II, or IIICITES document designating importer and country of final destination23.22
(10) Introduction from the sea under a pre-existing treaty, convention, or international agreement for that speciesIIDocument required by applicable treaty, convention, or international agreement, if appropriate23.39(d)
(11) Noncommercial loan, donation, or exchange of specimens between scientific institutions registered with the CITES SecretariatI, II, or IIIA label indicating CITES and the registration codes of both institutions and, in the United States, a CITES certificate of scientific exchange that registers the institution
3
23.48
(12) Personally owned live wildlife for multiple cross-border movementsI, II, or IIICITES certificate of ownership
2
23.44
(13) Pre-Convention specimenI, II, or IIICITES document indicating pre-Convention status
1
23.45
(14) Sample collection covered by an ATA carnetI
4, II, or III
CITES document indicating sample collection
2
23.50
(15) Traveling exhibitionI, II, or IIICITES document indicating specimens qualify as pre-Convention, bred in captivity, or artificially propagated
2
23.49


1 Issued by the Management Authority in the exporting or re-exporting country.


2 Issued by the Management Authority in the owner’s country of usual residence.


3 Registration codes assigned by the Management Authorities in both exporting and importing countries.


4 Appendix-I species bred in captivity or artificially propagated for commercial purposes (see §§ 23.46 and 23.47).


(e) Import permits, export permits, re-export certificates, and certificates of origin. Unless one of the exemptions under paragraph (d) of this section or § 23.92 applies, you must obtain the following CITES documents before conducting the proposed activity:


Appendix
Type of CITES document(s) required
IImport permit (§ 23.35) and either an export permit (§ 23.36) or re-export certificate (§ 23.37)
IIExport permit (§ 23.36) or re-export certificate (§ 23.37)
IIIExport permit (§ 23.36) if the specimen originated in a country that listed the species; certificate of origin (§ 23.38) if the specimen originated in a country other than the listing country, unless the listing annotation indicates otherwise; or re-export certificate for all re-exports (§ 23.37)

(f) Introduction-from-the-sea certificates. For introduction from the sea of Appendix-I or Appendix-II specimens, you must obtain an introduction-from-the-sea certificate before conducting the proposed activity, unless the exemption in paragraph (d)(10) of this section applies (see § 23.39). The export of a specimen that was previously introduced from the sea will be treated as an export (see § 23.36 for export, § 23.36(e) and § 23.39(e) for export of exempt specimens, or § 23.37 for re-export). Although an Appendix-III specimen does not require a CITES document to be introduced from the sea, the subsequent international trade of the specimen would be considered an export. For export of an Appendix-III specimen that was introduced from the sea you must obtain an export permit (§ 23.36) if the export is from the country that listed the species in Appendix III, a certificate of origin (§ 23.38) if the export is from a country other than the listing country, or a re-export certificate for all re-exports (§ 23.37).


§ 23.21 What happens if a country enters a reservation for a species?

(a) Purpose. CITES is not subject to general reservations. Articles XV, XVI, and XXIII of the Treaty allow a Party to enter a specific reservation on a species listed in Appendix I, II, or III, or on parts, products, or derivatives of a species listed in Appendix III.


(b) General provision. A Party can enter a reservation in one of the following ways:


(1) A Party must provide written notification to the Depositary Government (Switzerland) on a specific new or amended listing in the Appendices within 90 days after the CoP that adopted the listing, or at any time for Appendix-III species.


(2) A country must provide written notification on a specific species listing when the country ratifies, accepts, approves, or accedes to CITES.


(c) Requesting the United States take a reservation. You may submit information relevant to the issue of whether the United States should take a reservation on a species listing to the U.S. Management Authority. The request must be submitted within 30 calendar days after the last day of the CoP where a new or amended listing of a species in Appendix I or II occurs, or at any time for a species (or its parts, products, or derivatives) listed in Appendix III.


(d) Required CITES documents. Except as provided in paragraph (d)(2) of this section, Parties treat a reserving Party as if it were a non-Party for trade in the species concerned (including parts, products, and derivatives, as appropriate). The following table indicates when CITES documents must accompany a shipment and which Appendix should appear on the face of the document:


If
Then
(1) The shipment is between a Party and a reserving Party, or the shipment is from a non-Party to a reserving Party and is in transit through a PartyThe shipment must be accompanied by a valid CITES document(s) (see § 23.26) that indicates the CITES Appendix in which the species is listed.
(2) The shipment is from a reserving Party to another reserving Party
1 or non-Party and is in transit through a Party
The shipment must be accompanied by a valid CITES document(s) (see § 23.26) that indicates the CITES Appendix in which the species is listed.
2
(3) The shipment is between a reserving Party and another reserving Party
1 or non-Party and is not in transit through a Party
No CITES document is required.
2


1 Both reserving Parties must have a reservation for the same species, and if the species is listed in Appendix III, a reservation for the same parts, products, and derivatives.


2 CITES recommends that reserving Parties treat Appendix-I species as if listed in Appendix II and issue CITES documents based on Appendix-II permit criteria (see § 23.36). However, the CITES document must show the specimen as listed in Appendix I. If the United States entered a reservation, such a CITES document would be required.


(e) Reservations taken by countries. You may consult the CITES website or contact us (see § 23.7) for a list of countries that have taken reservations and the species involved.


§ 23.22 What are the requirements for in-transit shipments?

(a) Purpose. Article VII(1) of the Treaty allows for a shipment to transit an intermediary country that is a Party before reaching its final destination without the need for the intermediary Party to issue CITES documents. To control any illegal trade, Parties are to inspect, to the extent possible under their national legislation, specimens in transit through their territory to verify the presence of valid documentation. See § 23.50 for in-transit shipment of sample collections covered by an ATA carnet.


(b) Document requirements. An in-transit shipment does not require a CITES document from an intermediary country, but must be accompanied by all of the following documents:


(1) Unless the specimen qualifies for an exemption under § 23.92, a valid original CITES document, or a copy of the valid original CITES document, that designates the name of the importer in the country of final destination and is issued by the Management Authority of the exporting or re-exporting country. A copy of a CITES document is subject to verification.


(2) For shipment of an Appendix-I specimen, a copy of a valid import permit that designates the name of the importer in the country of final destination, unless the CITES document in paragraph (b)(1) of this section is a CITES exemption document (see § 23.20(d)).


(3) Transportation and routing documents that show the shipment has been consigned to the same importer and country of final destination as designated on the CITES document.


(c) Shipment requirements. An in-transit shipment, including items in an on-board store, must meet the following:


(1) When in an intermediary country, an in-transit shipment must stay only for the time needed to immediately transfer the specimen to the mode of transport used to continue to the final destination and remain under customs control. Other than during immediate transfer, the specimen may not be stored in a duty-free, bonded, or other kind of warehouse or a free trade zone.


(2) At any time during transit, an in-transit shipment must not be sold, manipulated, or split unless authorized by the Management Authority of the intermediary country for inspection or enforcement purposes.


(d) Reserving Party or non-Party. All the requirements of this section apply to shipments to or from a reserving Party or non-Party that are being transshipped through a Party. The CITES document must treat the specimen as listed in the Appendix as provided in § 23.21(d).


(e) Specimen protected by other regulations. Shipment of a specimen that is also listed as a migratory bird (part 10 of this subchapter), injurious wildlife (part 16 of this subchapter), endangered or threatened species (parts 17 of this subchapter and 222-224 of this title), marine mammal (parts 18 of this subchapter and 216 of this title), or bald or golden eagle (part 22 of this subchapter), and is moving through the United States is considered an import, and cannot be treated as an in-transit shipment (see § 23.3).


§ 23.23 What information is required on U.S. and foreign CITES documents?

(a) Purpose. Article VI of the Treaty provides standard information that must be on a permit and certificate issued under Articles III, IV, and V. To identify a false or invalid document, any CITES document, including a CITES exemption document issued under Article VII, must contain standardized information to allow a Party to verify that the specimen being shipped is the one listed on the document and that the trade is consistent with the provisions of the Treaty.


(b) CITES form. A CITES document issued by a Party must be issued in one or more of the three working languages of CITES (English, Spanish, or French). A CITES document from a non-Party may be in the form of a permit or certificate, letter, or any other form that clearly indicates the nature of the document and includes the information in paragraphs (c) through (e) of this section and the additional information in § 23.25.


(c) Required information. Except for a phytosanitary certificate used as a CITES certificate for artificially propagated plants in paragraph (f) of this section, or a customs declaration label used to identify specimens being moved between registered scientific institutions (§ 23.48(e)(5)), a CITES document issued by a Party or non-Party must contain the information set out in this paragraph (listed alphabetically). Specific types of CITES documents must also contain the additional information identified in paragraph (e) of this section. A CITES document is valid only when it contains the following information:


Required information
Description
(1) AppendixThe CITES Appendix in which the species, subspecies, or population is listed (see § 23.21 when a Party has taken a reservation on a listing). For products that contain or consist of more than one CITES species, the Appendix in which each species is listed must be indicated on the CITES document.
(2) Applicant’s signatureThe applicant’s signature if the CITES document includes a place for it.
(3) Bill of lading, air waybill, or flight numberAs applicable for export or re-export: (i) by ocean or air cargo, the bill of lading or air waybill number or (ii) in accompanying baggage, the flight number, as recorded on the CITES document by the inspecting official at the port, if known at the time of validation or certification.
(4) DatesDate of issue and date of expiration (“valid until” date on the standardized CITES form), which is midnight of the date on the CITES document. See § 23.54 for the length of validity for different types of CITES documents.
(5) Description of the specimenA complete description of the specimen, including whether live or the type of goods. The sex and age of a live specimen should be recorded, if possible. Such information must be in English, Spanish, or French on a CITES document from a Party. If a code is used to indicate the type of specimen, it must agree with the Guidelines for preparation and submission of CITES annual reports available from the CITES website or us (see § 23.7).
(6) Document numberA unique control number. We use a unique 12-character number. The first two characters are the last two digits of the year of issuance, the next two are the two-letter ISO country code, followed by a six-digit serial number, and two digits or letters used for national informational purposes.
(7) Humane transport of live specimensIf the CITES document authorizes the export or re-export of live specimens, a statement that the document is valid only if the transport conditions comply with the International Air Transport Association Live Animals Regulations or the International Air Transport Association Perishable Cargo Regulations (incorporated by reference, see § 23.9). A shipment containing live animals must comply with the requirements of the Live Animals Regulations (LAR). A shipment containing live plants must comply with the requirements for plants in the Perishable Cargo Regulations (PCR).
(8) Identification of the specimenAny unique identification number or mark (such as a tag, band, ring, microchip, label, or serial number), including any mark required under these regulations or a CITES listing annotation. For a microchip, the microchip code, trademark of the transponder manufacturer and, where possible, the location of the microchip in the specimen. If a microchip is used, we may, if necessary, ask the importer, exporter, or re-exporter to have equipment on hand to read the microchip at the time of import, export, or re-export.
(9) Management AuthorityThe complete name and address of the issuing Management Authority as included in the CITES directory, which is available from the CITES website or us (see § 23.7).
(10) Name and addressThe complete name and address, including country, of the exporter and importer.
(11) Purpose of transactionThe purpose of the transaction identified either through a written description of the purpose of the transaction or by using one of the codes given in paragraph (d) of this section. The code is determined by the issuing Management Authority through information submitted with an application. This is not required for a certificate of origin.
(12) QuantityThe quantity of specimens authorized in the shipment and, if appropriate, the unit of measurement using the metric system. For products that contain or consist of more than one CITES species, the quantity of each species must be indicated on the CITES document.

(i) The unit of measurement should be appropriate to the type of specimen and agree with the Guidelines for the preparation and submission of CITES annual reports available from the CITES website or us (see § 23.7). General descriptions such as “one case” or “one batch” are not acceptable.

(ii) Weight should be in kilograms. If weight is used, net weight (weight of the specimen alone) must be stated, not gross weight that includes the weight of the container or packaging.

(iii) Volume should be in cubic meters for logs and sawn wood and either square meters or cubic meters for veneer and plywood.

(iv) For re-export, if the type of good has not changed since being imported, the same unit of measurement as on the export permit must be used, except to change to units that are to be used in the CITES annual report.
(13) Scientific nameThe scientific name of the species, including the subspecies when needed to determine the level of protection of the specimen under CITES. For products that contain or consist of more than one CITES species, the scientific name of each species must be indicated on the CITES document. Scientific names must be in the standard nomenclature as it appears in the CITES Appendices or the references adopted by the CoP. A list of current references is available from the CITES website or us (see § 23.7). A CITES document may contain higher-taxon names in

(i) The CoP has agreed that the use of a higher-taxon name is acceptable for use on CITES documents.

(A) If the genus cannot be readily determined for coral rock, the scientific name to be used is the order Scleractinia.

(B) If the species cannot be determined for worked specimens of black coral, specimens may be identified at the genus level. If the genus cannot be determined for worked specimens of black coral, the scientific name to be used is the order Antipatharia. Raw black coral and live black coral must be identified to the level of species.

(C) Live and dead coral must be identified to the level of species except where the CoP has agreed that identification to genus is acceptable. A current list of coral taxa identifiable to genus is available from the CITES website or us (see § 23.7).

(D) Re-export of worked skins or pieces of Tupinambis species that were imported before August 1, 2000, may indicate Tupinambis spp.

(ii) The issuing Party can show the use of a higher-taxon name is well justified and has communicated the justification to the Secretariat.

(iii) The item is a pre-Convention manufactured product containing a specimen that cannot be identified to the species level.
(14) Seal or stampThe embossed seal or ink stamp of the issuing Management Authority.
(15) Security stampIf a Party uses a security stamp, the stamp must be canceled by an authorized signature and a stamp or seal, preferably embossed. The number of the stamp must also be recorded on the CITES document.
(16) SignatureAn original handwritten signature or signature stamp of a person authorized to sign CITES documents for the issuing Management Authority. The signature must be on file with the Secretariat.
(17) Signature nameThe name of the person who signed the CITES document.
(18) SourceThe source of the specimen. For products that contain or consist of more than one CITES species, the source code of each species must be indicated on the CITES document. For re-export, unless there is information to indicate otherwise, the source code on the CITES document used for import of the specimen must be used. See § 23.24 for a list of codes.
(19) Treaty nameEither the full name or acronym of the Treaty, or the CITES logo.
(20) Type of CITES documentThe type of CITES document (import, export, re-export, or other):

(i) If marked “other,” the CITES document must indicate the type of document, such as certificate for artificially propagated plants, certificate for wildlife bred in captivity, certificate of origin, certificate of ownership, introduction-from-the-sea certificate, pre-Convention certificate, sample collection covered by an ATA carnet, scientific exchange certificate, or traveling-exhibition certificate.

(ii) If multiple types are authorized on one CITES document, the type that applies to each specimen must be clearly indicated.
(21) Validation or certificationExcept as provided for replacement (§ 23.52(f)) or retrospective (§ 23.53(f)) CITES documents, the actual quantity of specimens exported or re-exported:

(i) Using the same units of measurement as those on the CITES document.

(ii) Validated or certified by the stamp or seal and signature of the inspecting authority at the time of export or re-export.

(d) Purpose of transaction. If the purpose is not identified by a written description, the CITES document must contain one of the following codes:


Code
Purpose of transaction
BBreeding in captivity or artificial propagation
EEducation
GBotanical garden
HHunting trophy
LLaw enforcement/judicial/forensic
MMedical research (including biomedical research)
NReintroduction or introduction into the wild
PPersonal
QCircus and traveling exhibition
SScientific
TCommercial
ZZoo

(e) Additional required information. The following describes the additional information that is required for specific types of documents (listed alphabetically):


Type of document
Additional required information
(1) Annex (such as an attached inventory, conditions, or continuation pages of a CITES document)The page number, document number, and date of issue on each page of an annex that is attached as an integral part of a CITES document. An authorized signature and ink stamp or seal, preferably embossed, of the Management Authority issuing the CITES document must also be included on each page of the annex. The CITES document must indicate an attached annex and the total number of pages.
(2) Certificate of origin (see § 23.38)A statement that the specimen originated in the country that issued the certificate.
(3) Copy when used in place of the original CITES document(i) Information required in paragraph (e)(7) of this section when the document authorizes export or re-export.

(ii) A statement by the Management Authority on the face of the document authorizing the use of a copy when the document authorizes import.
(4) Export permit for a registered commercial breeding operation or nursery for Appendix-I specimens (see § 23.46)The registration number of the operation or nursery assigned by the Secretariat, and if the exporter is not the registered operation or nursery, the name of the registered operation or nursery.
(5) Export permit with a quotaNumber of specimens, such as 500/1,000, that were:

(i) Exported thus far in the current year, including those covered by the current permit (such as 500), and

(ii) Included in the current annual quota (such as 1,000).
(6) Import permit (Appendix-I specimen) (see § 23.35)A certification that the specimen will not be used for primarily commercial purposes and, for a live specimen, that the recipient has suitable facilities and expertise to house and care for it.
(7) Replacement CITES document (see § 23.52)When a CITES document replaces an already issued CITES document that was lost, damaged, stolen, or accidentally destroyed:

(i) If a newly issued CITES document, indication it is a “replacement,” the number and date of issuance of the CITES document that was replaced, and reason for replacement.

(ii) If a copy of the original CITES document, indication it is a “replacement” and a “true copy of the original,” a new original signature of a person authorized to sign CITES documents for the issuing Management Authority, the date signed, and reason for replacement.
(8) Partially completed documents (see § 23.51)(i) A list of the blocks that must be completed by the permit holder.

(ii) If the list includes scientific names, an inventory of approved species must be included on the face of the CITES document or in an attached annex.

(iii) A signature of the permit holder, which acts as a certification that the information entered is true and accurate.
(9) Pre-Convention document (see § 23.45)(i) An indication on the face of the CITES document that the specimen is pre-Convention.

(ii) A date that shows the specimen was acquired before the date the Convention first applied to it.
(10) Re-export certificate (see § 23.37)(i) The country of origin, the export permit number, and the date of issue.

(ii) If previously re-exported, the country of last re-export, the re-export certificate number, and the date of issue.

(iii) If all or part of this information is not known, a justification must be given.

(iv) For products that contain or consist of more than one CITES species, the information in paragraphs (e)(10)(i) through (iii) of this section for each species must be indicated on the CITES document.
(11) Retrospective CITES document (see § 23.53)A clear statement that the CITES document is issued retrospectively and the reason for issuance.
(12) Sample collection covered by an ATA carnet (see § 23.50)(i) A statement that the document covers a sample collection and is invalid unless accompanied by a valid ATA carnet.

(ii) The number of the accompanying ATA carnet recorded by the Management Authority, customs, or other responsible CITES inspecting official.

(f) Phytosanitary certificate. A Party may use a phytosanitary certificate as a CITES document under the following conditions:


(1) The Party has provided copies of the certificate, stamps, and seals to the Secretariat.


(2) The certificate is used only when all the following conditions are met:


(i) The plants are being exported, not re-exported.


(ii) The plants are Appendix-II species, or are hybrids of one or more Appendix-I species or taxa that are not annotated to treat hybrids as Appendix-I specimens.


(iii) The plants were artificially propagated in the exporting country.


(3) The certificate contains the following information:


(i) The scientific name of the species, including the subspecies when needed to determine the level of protection of the specimen under CITES, using standard nomenclature as it appears in the CITES Appendices or the references adopted by the CoP.


(ii) The type (such as live plant or bulb) and quantity of the specimens authorized in the shipment.


(iii) A stamp, seal, or other specific indication stating that the specimen is artificially propagated (see § 23.64).


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30420, May 27, 2014; 79 FR 32677, June 6, 2014]


§ 23.24 What code is used to show the source of the specimen?

The Management Authority must indicate on the CITES document the source of the specimen using one of the following codes, except the code “O” for pre-Convention, which may be used in conjunction with another code:


Source of specimen
Code
(a) Artificially propagated plant (see § 23.40):

(1) An Appendix-II or -III artificially propagated specimen.

(2) An Appendix-I plant specimen artificially propagated for noncommercial purposes or certain Appendix-I hybrids (see § 23.42) propagated for commercial purposes.
A
(b) Bred-in-captivity wildlife (see § 23.41):

(1) An Appendix-II or -III specimen bred in captivity. (See paragraph (d)(1) of this section for wildlife that does not qualify as bred in captivity.)

(2) An Appendix-I specimen bred for noncommercial purposes. (See paragraph (c)(1) of this section for an Appendix-I specimen bred for commercial purposes.)
C
(c) Bred in captivity or artificially propagated for commercial purposes (see §§ 23.46 and 23.47):

(1) An Appendix-I wildlife specimen bred in captivity for commercial purposes at an operation registered with the Secretariat.

(2) An Appendix-I plant specimen artificially propagated for commercial purposes at a nursery that is registered with the Secretariat or a commercial propagating operation that meets the requirements of § 23.47.
D
(d) Captive-bred wildlife (§ 23.36):

(1) An Appendix-II or -III wildlife species that is captive-bred.

(2) An Appendix-I wildlife species that is one of the following:

(i) Captive-bred (see § 23.5).

(ii) Bred for commercial purposes, but the commercial breeding operation is not registered with the Secretariat.
F
(e) Confiscated or seized specimen (see § 23.78).I
(f) Pre-Convention specimen (see § 23.45) (code may be used in conjunction with another code).O
(g) Ranched wildlife (see § 23.5).R
(h) Source unknown (must be justified on the face of the CITES document).U
(i) Specimen taken from the wild:

(1) For wildlife, this includes a specimen born in captivity from an egg collected from the wild or from wildlife that mated or exchanged genetic material in the wild.

(2) For a plant, it includes a specimen propagated from a propagule collected from a wild plant, except as provided in § 23.64.
W

[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30423, May 27, 2014]


§ 23.25 What additional information is required on a non-Party CITES document?

(a) Purpose. Under Article X of the Treaty, a Party may accept a CITES document issued by a competent authority of a non-Party only if the document substantially conforms to the requirements of the Treaty.


(b) Additional certifications. In addition to the information in § 23.23(c) through (e), a CITES document issued by a non-Party must contain the following certifications on the face of the document:


Activity by a non-Party
Certification
(1) Export(i) For Appendix-I and -II specimens, the Scientific Authority has advised that the export will not be detrimental to the survival of the species.

(ii) The Management Authority is satisfied that the specimen was legally acquired.
(2) ImportFor Appendix-I specimens, the import will be for purposes that are not detrimental to the survival of the species.

§ 23.26 When is a U.S. or foreign CITES document valid?

(a) Purpose. Article VIII of the Treaty provides that Parties take appropriate measures to enforce the Convention to prevent illegal trafficking in wildlife and plants.


(b) Original CITES documents. A separate original or a true copy of a CITES document must be issued before the import, introduction from the sea, export, or re-export occurs, and the document must accompany each shipment. No copy may be used in place of an original except as provided in § 23.23(e)(3) or when a shipment is in transit (see § 23.22). Fax or electronic copies are not acceptable.


(c) Acceptance of CITES documents. We will accept a CITES document as valid for import, introduction from the sea, export, or re-export only if the document meets the requirements of this section, §§ 23.23 through 23.25, and the following conditions:


Key phrase
Conditions for an acceptable CITES document
(1) Altered or modified CITES documentThe CITES document has not been altered (including by rubbing or scratching out), added to, or modified in any way unless the change is validated on the document by the stamp and authorized signature of the issuing Management Authority, or if the document was issued as a partially completed document, the Management Authority lists on the face of the document which blocks must be completed by the permit holder.
(2) Annual reportsThe Party issuing the CITES document has submitted annual reports and is not subject to any action under Article VIII paragraph 7(a) that would not allow trade in CITES species.
(3) CITES documentU.S. and foreign CITES documents must meet the general provisions and criteria in subparts C and E.
(4) ConditionsAll conditions on the CITES document are met.
(5) Convention implementationThe Party issuing the CITES document is not subject to any action under Article VIII or Article XIII paragraph 3 that would not allow trade in the species.
(6) Extension of validityThe validity of a CITES document may not be extended except as provided in § 23.73 for certain timber species.
(7) Fraudulent CITES document or CITES document containing false informationThe CITES document is authentic and does not contain erroneous or misleading information.
(8) Humane transportLive wildlife or plants were transported in compliance with the International Air Transport Association Live Animals Regulations (for animals) or the International Air Transport Association Perishable Cargo Regulations (for plants) (incorporated by reference, see § 23.9).
(9) Legal acquisitionThe Party or non-Party issuing the CITES document has made the required legal acquisition finding.
(10) Management Authority and Scientific AuthorityThe CITES document was issued by a Party or non-Party that has designated a Management Authority and Scientific Authority and has provided information on these authorities to the Secretariat.
(11) Name of importer and exporterA CITES document is specific to the name on the face of the document and may not be transferred or assigned to another person.
(12) Non-detrimentThe Party or non-Party issuing the CITES document has made the required non-detriment finding.
(13) Phytosanitary certificateA phytosanitary certificate may be used to export artificially propagated plants only if the issuing Party has provided copies of the certificates, stamps, and seals to the Secretariat.
(14) QuotaFor species with a quota on file with the Secretariat, the quantity exported from a country does not exceed the quota.
(15) Registered commercial breeding operation for Appendix-I wildlife(i) The operation is included in the Secretariat’s register.

(ii) Each specimen is specifically marked, and the mark is described on the CITES document.
(16) Registered commercial nursery for Appendix-I plantsThe operation is included in the Secretariat’s register.
(17) Retrospective CITES documentsA CITES document was not issued retrospectively except as provided in § 23.53.
(18) Shipment contentsThe contents of the shipment match the description of specimens provided on the CITES document, including the units and species. A shipment cannot contain more or different specimens or species than certified or validated on the CITES document at the time of export or re-export; the quantity of specimens validated or certified may be less, but not more, than the quantity stated at the time of issuance.
(19) Wild-collected specimenA wild-collected specimen (indicated on the CITES document with a source code of “W”) is not coming from a country that is outside the range of the species, unless we have information indicating that the species has been established in the wild in that country through accidental introduction or other means.

(d) Verification of a CITES document. We may request verification of a CITES document from the Secretariat or a foreign Management Authority before deciding whether to accept it under some circumstances, including, but not limited to, the following:


(1) We receive reliable information that indicates the need for CITES document verification.


(2) We have reasonable grounds to believe that a CITES document is not valid or authentic because the species is being traded in a manner detrimental to the survival of the species or in violation of foreign wildlife or plant laws, or any applicable Management or Scientific Authority finding has not been made.


(3) The re-export certificate refers to an export permit that does not exist or is not valid.


(4) The CITES document includes a species for which the Secretariat has published an annotated quota.


(5) We have reasonable grounds to believe that the document is fraudulent, contains false information, or has unauthorized changes.


(6) We have reasonable grounds to believe that the specimen identified as bred in captivity or artificially propagated is a wild specimen, was produced from illegally acquired parental stock, or otherwise does not qualify for these exemptions.


(7) We know or have reasonable grounds to believe that an Appendix-I specimen was not bred at a facility registered with the CITES Secretariat and that the purpose of the import is commercial.


(8) The import of a specimen designated as bred in captivity or artificially propagated is from a non-Party. For an Appendix-I specimen, we must consult with the Secretariat.


(9) For a retrospectively issued CITES document, both the importing and exporting or re-exporting countries’ Management Authorities have not agreed to the issuance of the document.


(10) For a replacement CITES document, we need clarification of the reason the document was issued.


(11) The export permit or re-export certificate does not contain validation or certification by an inspecting official at the time of export of the actual quantity exported or re-exported.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30423, May 27, 2014]


§ 23.27 What CITES documents do I present at the port?

(a) Purpose. Article VIII of the Treaty provides that Parties establish an inspection process that takes place at a port of exit and entry. Inspecting officials must verify that valid CITES documents accompany shipments and take enforcement action when shipments do not comply with the Convention. Article VI, paragraph 6, of the Treaty requires that the Management Authority of the importing country cancel and retain the export permit or re-export certificate and any corresponding import permit presented. In the United States, for imports of CITES-listed plant specimens, CITES inspecting officials cancel and submit original CITES documents to the U.S. Management Authority.


(b) U.S. port requirements. In the United States, you must follow the clearance requirements for wildlife in part 14 of this subchapter and for plants in part 24 of this subchapter and 7 CFR parts 319, 352, and 355, and the specific requirement in paragraphs (c) and (d) of this section.


(c) General validation or certification process. Officials in each exporting or re-exporting country inspect the shipment and validate or certify the CITES document. The table in this paragraph (c) provides information on:


(1) The types of original CITES documents you must present to be validated or certified by the inspecting official to export or re-export from a country.


(2) When you need to surrender a copy of the original CITES document to the inspecting official at the time of export or re-export.


(3) When you need to surrender the original CITES document to the inspecting official at the time of import or introduction from the sea.


Type of CITES document
Present original for export or re-export validation or certification
Surrender copy upon

export or re-export
Surrender original upon

import or introductionfrom the sea
Bred-in-captivity certificateRequiredRequiredRequired
Certificate for artificially propagated plantsRequiredRequiredRequired
Certificate of originRequiredRequiredRequired
Certificate of ownershipRequiredRequiredNot required; submit copy
Export permitRequiredRequiredRequired
Import permitNot requiredRequiredRequired
Introduction-from-the-sea certificateNot applicableNot applicableRequired
Multiple-use documentRequired
1
RequiredNot required; submit copy
Phytosanitary certificateRequiredRequiredNot required; submit copy
Pre-Convention documentRequiredRequiredRequired
Re-export certificateRequiredRequiredRequired
Registered Appendix-I commercial breeding operation, export permitRequiredRequiredRequired
Registered Appendix-I nursery, export permitRequiredRequiredRequired
Replacement document where a shipment has been made and is in a foreign countryNot requiredNot requiredRequired
Replacement document where a shipment has not left the United StatesRequiredRequiredRequired
Retrospective documentNot requiredNot requiredRequired
Sample collection covered by an ATA carnet, CITES documentRequiredRequiredNot required; submit copy
Traveling-exhibition certificateRequiredRequiredNot required; submit copy


1 Original must be available for inspection, but permit conditions will indicate whether an original or copy is to be validated.


(d) Customs declaration labels. The customs declaration label used to identify specimens being moved between registered scientific institutions (§ 23.48) must be affixed to the shipping container. The label does not require export or re-export validation or certification at the port.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30424, May 27, 2014]


Subpart C – Application Procedures, Criteria, and Conditions

§ 23.32 How do I apply for a U.S. CITES document?

(a) To apply for a U.S. CITES document, you must complete a standard application form and submit it to the appropriate office shown on the top of the form.


(b) To determine the type of CITES document needed for your shipment, go to §§ 23.18 through 23.20 for further guidance.


(c) If a species is also regulated under another part of this subchapter (such as endangered or threatened species, see § 23.3), the requirements of all parts must be met. You may submit a single application that contains all the information needed to meet the requirements of CITES and other applicable parts.


(d) You must also follow the general permit procedures in part 13 of this subchapter.


(e) You should review the criteria in all applicable regulations in this subchapter that apply to the type of permit you are seeking before completing the application form.


(f) We will review your application to assess whether it contains the information needed to make the required findings.


(1) Based on available information, we will decide if any of the exemptions apply and what type of CITES document you need.


(2) If we need additional information, we will contact you. If you do not provide the information within 45 calendar days, we will abandon your application. If your application is abandoned and you wish to apply for a permit at a later time, you must submit a new application.


§ 23.33 How is the decision made to issue or deny a request for a U.S. CITES document?

(a) Upon receiving a complete application, we will decide whether to issue a CITES document by considering:


(1) The general criteria in § 13.21(b) of this subchapter and, if the species is protected under a separate law or treaty, criteria in any other applicable parts.


(2) The CITES issuance criteria provided in this subpart (see subpart D of this part for factors we consider in making certain findings).


(b) As needed, the U.S. Management Authority, including FWS Law Enforcement, will forward a copy of the application to the U.S. Scientific Authority; State, tribal, or other Federal government agencies; or other applicable experts. We may also query the Secretariat and foreign Management and Scientific Authorities for information to use in making the required findings.


(c) You must provide sufficient information to satisfy us that all criteria specific to the proposed activity are met before we can issue a CITES document.


(d) We will base our decision on whether to issue or deny the application on the best available information.


§ 23.34 What kinds of records may I use to show the origin of a specimen when I apply for a U.S. CITES document?

(a) When you apply for a U.S. CITES document, you will be asked to provide information on the origin of the specimen that will be covered by the CITES document.


(1) You need to provide sufficient information for us to determine if the issuance criteria in this part are met (see the sections in this subpart for each type of CITES document).


(2) We require less detailed information when the import, introduction from the sea, export, or re-export poses a low risk to a species in the wild and more detailed information when the proposed activity poses greater risk to a species in the wild (see Subpart D of this part for factors we consider in making certain findings).


(b) Information you may want to provide in a permit application includes, but is not limited to, the following:


Source of specimen
Types of records

(1) Captive-bred or cultivated
1
(i) Records that identify the breeder or propagator of the specimens that have been identified by birth, hatch, or propagation date and for wildlife by sex, size, band number, or other mark, or for plants by size or other identifying feature:

(A) Signed and dated statement by the breeder or propagator that the specimen was bred or propagated under controlled conditions.

(B) Name and address of the breeder or propagator as shown by documents such as an International Species Information System (ISIS) record, veterinary certificate, or plant nursery license.

(ii) Records that document the breeding or propagating of specimens at the facility:

(A) Number of wildlife (by sex and age- or size-class) or plants at the facility.

(B) How long the facility has been breeding or propagating the species.

(C) Annual production and mortalities.

(D) Number of specimens sold or transferred annually.

(E) Number of specimens added from other sources annually.

(F) Transaction records with the date, species, quantity of specimens, and name and address of seller.

(G) Marking system, if applicable.

(H) Photographs or video of facility, including for wildlife any activities during nesting and production and rearing of young, and for plants, different stages of growth.

(2) Confiscated or seizedCopy of remission decision, legal settlement, or disposal action after forfeiture or abandonment, which demonstrates the applicant’s legal possession.

(3) Grown from exempt plant materialRecords that document how you obtained the exempt plant material, including the name and address of the person from whom you received the plant material.

(4) Imported previously(i) A copy of the cancelled CITES document that accompanied the shipment into the United States.

(ii) For wildlife, copies of cleared Declarations for Importation or Exportation of Fish or Wildlife (Form 3-177) associated with each specimen.

(5) Pre-ConventionRecords that show the specimen was acquired before the date the provisions of the Convention first applied to it, such as:

(i) Receipt or invoice.

(ii) Catalog, inventory list, photograph, or art book.

(iii) Statement from a qualified appraiser attesting to the age of a manufactured product.

(iv) CBP (formerly U.S. Customs Service) import documents.

(v) Phytosanitary certificate.

(vi) Veterinary document or breeding or propagation logs.

(6) Ranched wildlife(i) Records, such as permits, licenses, and tags, that demonstrate that the specimen was legally removed from the wild under relevant Federal, tribal, State, or local wildlife conservation laws or regulations:

(A) If taken on private or tribal land, permission of the landowner if required under applicable law.

(B) If taken in a national, State, or local park, refuge or other protected area, permission from the applicable agency, if required.

(ii) Records that document the rearing of specimens at the facility:

(A) Number of specimens (by sex and age- or size-class) at the facility.

(B) How long the specimens were reared at the facility.

(C) Signed and dated statement by the owner or manager of the facility that the specimens were reared at the facility in a controlled environment.

(D) Marking system, if applicable.

(E) Photographs or video of the facility.

(7) Sequential ownership or purchase(i) Records that specifically identify the specimen, give the name and address of the owner, and show the specimen’s origin (pre-Convention, previously imported, wild-collected, or born or propagated in a controlled environment in the United States).

(ii) Records that document the history of all transfers in ownership (generally not required for pre-Convention specimens).

(8) Unknown origin, for noncommercial purposesA complete description of the circumstances under which the specimen was acquired (where, when, and from whom the specimen was acquired), including efforts made to obtain information on the origin of the specimen.

(9) Wild-collectedRecords, such as permits, licenses, and tags, that demonstrate the specimen or the parental stock was legally removed from the wild under relevant foreign, Federal, tribal, State, or local wildlife or plant conservation laws or regulations:

(i) If taken on private or tribal land, permission of the landowner if required under applicable law.

(ii) If taken in a national, State, or local park, refuge, or other protected area, permission from the applicable agency, if required.


1 If the wildlife was born in captivity from an egg collected in the wild or from parents that mated or exchanged genetic material in the wild, see paragraphs (b)(6) and (b)(9) of this section. If the plant was propagated from a non-exempt propagule collected from a wild plant, see paragraph (b)(9) of this section.


(c) If you intend to engage in international trade with a CITES specimen in the future, you should keep sufficient records to establish your eligibility for a CITES document for as long as you possess the specimen, and if you sell, donate, or transfer ownership of the specimen, you should provide such records on the origin of the specimen to the new owner.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30424, May 27, 2014]


§ 23.35 What are the requirements for an import permit?

(a) Purpose. Article III(3) of the Treaty sets out the conditions under which a Management Authority can issue an import permit.


(b) U.S. application forms. Complete the appropriate form for the proposed activity and submit it to the U.S. Management Authority:


Type of application for an import permit for an Appendix-I specimen
Form no.
(1) CITES:

Southern African Leopard, African Elephant, and Namibian Southern White Rhinoceros Sport-hunted Trophies

Appendix-I Plants

Appendix-I Wildlife

Appendix-I Biological Samples


3-200-19

3-200-35

3-200-37

3-200-29

(2) Endangered Species Act and CITES:

ESA Plants

ESA Sport-hunted Trophies

ESA Wildlife


3-200-36

3-200-20

3-200-37
(3) Marine Mammal Protection Act and CITES:

Marine Mammals


3-200-43
(4) Wild Bird Conservation Act and CITES:

Personal Pet Bird

Under an Approved Cooperative Breeding Program

Scientific Research or Zoological Breeding/Display


3-200-46

3-200-48

3-200-47

(c) Criteria. The criteria in this paragraph (c) apply to the issuance and acceptance of U.S. and foreign import permits. When applying for a U.S. import permit, you must provide sufficient information for us to find that your proposed activity meets all of the following criteria:


Criteria for an import permit for an Appendix-I specimen
Section
(1) The proposed import would be for purposes that are not detrimental to the survival of the species.23.61
(2) The specimen will not be used for primarily commercial purposes.23.62
(3) The recipients are suitably equipped to house and care for any live wildlife or plant to be imported.23.65
(4) The scientific name of the species is the standard nomenclature in the CITES Appendices or the references adopted by the CoP.23.23

(d) U.S. standard conditions. You must meet all of the provisions on use after import in § 23.55 and the standard conditions in § 23.56.


(e) Prior issuance of an import permit. For Appendix-I specimens, the Management Authority of the exporting country may:


(1) Issue an export permit for live or dead specimens or a re-export certificate for live specimens only after the Management Authority of the importing country has either issued an import permit or confirmed in writing that an import permit will be issued.


(2) Accept oral confirmation from the Management Authority of the importing country that an import permit will be issued in an emergency situation where the life or health of the specimen is threatened and no means of written communication is possible.


(3) Issue a re-export certificate for a dead specimen without confirmation that the import permit has been issued.


§ 23.36 What are the requirements for an export permit?

(a) Purposes. Articles III, IV, and V of the Treaty set out the conditions under which a Management Authority may issue an export permit for an Appendix-I, -II, or -III specimen. Article XIV sets out the conditions under which a Management Authority may issue a document for export of certain Appendix-II marine specimens protected under a pre-existing treaty, convention, or international agreement.


(b) U.S. application forms. Complete the appropriate form for the proposed activity and submit it to the U.S. Management Authority. Form 3-200-26 may also be submitted to FWS Law Enforcement at certain ports or regional offices:


Type of application for an export permit
Form no.
(1) CITES:
American Ginseng3-200-34
Appendix-I Plants Artificially Propagated for Commercial Purposes3-200-33
Biological Specimens3-200-29
Captive-born Raptors3-200-25
Captive-born Wildlife (except raptors)3-200-24
Caviar/Live Eggs/Meat of Paddlefish or Sturgeon, From an Aquaculture Facility3-200-80
Caviar/Meat of Paddlefish or Sturgeon, Removed from the Wild3-200-76
Export of Skins of Bobcat, Canada Lynx, River Otter, Brown Bear, Gray Wolf, and American Alligator Taken under an Approved State or Tribal Program3-200-26
Master File for the Export of Live Animals Bred in Captivity3-200-85
Personal Pets, One-time Export3-200-46
Plants3-200-32
Registration of a Native Species Production Facility3-200-75
Single-use Permits under a Master File or an Annual Program File3-200-74
Trophies by Hunters or Taxidermists3-200-28
Wildlife, Removed from the Wild (Live Animals/Samples/Parts/Products)3-200-27
(2) Endangered Species Act and CITES:
ESA Plants3-200-36
ESA Wildlife3-200-37
(3) Marine Mammal Protection Act and CITES:
Biological Samples3-200-29
Live Captive-held Marine Mammals3-200-53
Take from the Wild for Export3-200-43

(c) Criteria. The criteria in this paragraph (c) apply to the issuance and acceptance of U.S. and foreign export permits except as provided for certain marine specimens in paragraph (d) of this section. When applying for a U.S. permit or certificate, you must provide sufficient information for us to find that your proposed activity meets all of the following criteria:


Criteria for an export permit
Appendix of the specimen
Section
I
II
III
(1) The wildlife or plant was legally acquired.YesYesYes23.60
(2) The proposed export would not be detrimental to the survival of the species.YesYesn/a23.61
(3) An import permit has already been issued or the Management Authority of the importing country has confirmed that it will be issued.Yesn/an/a23.35
(4) The scientific name of the species is the standard nomenclature in the CITES Appendices or the references adopted by the CoP.YesYesYes23.23
(5) Live wildlife or plants will be prepared and shipped so as to minimize risk of injury, damage to health, or cruel treatment of the specimen.YesYesYes23.23
(6) The specimen originated in a country that listed the species.n/an/aYes23.20
(7) For wildlife with the source code “W” or “F,” the export is for noncommercial purposes. (See § 23.46 for the export of specimens that originated at a commercial breeding operation for Appendix-I wildlife that is registered with the Secretariat.)Yesn/an/a

(d) Export of certain exempt marine specimens. Article XIV(4) and (5) of the Treaty provide a limited exemption for Appendix-II marine species that are protected under another treaty, convention, or international agreement that was in force at the time CITES entered into force. When all of the following conditions are met, export of exempt Appendix-II marine wildlife or plants requires only that the shipment is accompanied by a document issued by the Management Authority of the exporting country indicating that the specimens were taken in accordance with the provisions of the other international treaty, convention, or agreement:


(1) The exporting country is a CITES Party and is a party to an international treaty, convention, or agreement that affords protection to the species and was in force on July 1, 1975.


(2) The ship that harvested the specimen is registered in the exporting country.


(3) The specimen was taken within waters under the jurisdiction of the exporting country or in the marine environment not under the jurisdiction of any country.


(4) The specimen was taken in accordance with the other international treaty, convention, or agreement, including any quotas.


(5) The shipment is accompanied by any official document required under the other international treaty, convention, or agreement or otherwise required by law.


(e) Export of exempt specimens from the United States. To export a specimen exempted under paragraph (d) of this section, you must obtain a CITES document from the U.S. Management Authority that indicates the specimen was taken in accordance with the provisions of another international treaty, convention, or agreement that was in force on July 1, 1975.


(f) U.S. application for export of exempt specimens. To apply for a CITES exemption document under paragraph (e) of this section, complete the appropriate form for your activity and submit it to the U.S. Management Authority.


(g) Criteria for certain exempt marine specimens. The criteria in this paragraph (g) apply to the issuance and acceptance of U.S. and foreign export documents. To obtain a U.S. CITES document for export of specimens exempted under paragraph (d) of this section you must provide sufficient information for us to find that your proposed export meets all of the following issuance criteria:


(1) The specimen was taken in accordance with the provisions of an applicable international treaty, convention, or agreement that was in force on July 1, 1975.


(2) The scientific name of the CITES species is in the standard nomenclature in the CITES Appendices or references adopted by the CoP (see § 23.23).


(3) The ship that harvested the specimen is registered in the exporting country.


(4) The specimen was taken within waters under the jurisdiction of the exporting country or in the marine environment not under the jurisdiction of any country.


[72 FR 48448, Aug. 23, 2007, as amended at 79 FR 30424, May 27, 2014]


§ 23.37 What are the requirements for a re-export certificate?

(a) Purposes. Articles III, IV, and V of the Treaty set out the conditions under which a Management Authority may issue a re-export certificate for an Appendix-I, -II, or -III specimen.


(b) U.S. application forms. Complete the appropriate form for the proposed activity and submit it to the U.S. Management Authority. Form 3-200-73 may also be submitted to Law Enforcement at certain ports or regional offices:


Type of application for a re-export certificate