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  • Numerous bird-related regulations appear to be extinct

    Fern Davies
    • Author: Ornithological Council

      It is no secret that the current U.S. administration has great disdain for regulations. It now looks as though several bird-related regulations - including some that would have affected ornithological research - are now on the scrap heap. Gone are pending regulations on CITES, Migratory Bird Treaty Act, Animal Welfare Act. The bird banding regulatory revisions have been consigned to the long-term action list. Updates to the Wild Bird Conservation Act are still moving forward, as are regulations updating import and export procedures and an increase in permit and other fees.

    Regulations. The current U.S. administration would like to toss the entire Code of Federal Regulations into the dumpster. In their anti-regulatory zeal, they have already ditched several that would have affected ornithological research (some, for the better) and another that might have had a major impact in protecting migratory birds.


    This news and analysis are provided by the Ornithological Council, a consortium supported by 11 ornithological societies. Join or renew your membership in your ornithological society if you value the services these societies provide to you, including Ornithology Exchange and the Ornithological Council!


    Though agency staff had hinted that these regulations might be 86'd, nothing was official until the Office of Information and Regulatory Affairs (of the White House Office of Management and Budget) released the updated Unified Agenda of Regulatory Actions (now named the Unified Agenda of Regulatory and Deregulatory Actions). This unified agenda tracks the progress towards completion of all regulatory matters moving through the agency regulatory process.


    Several regulations that had been pending - one since 2004 and another since 2010 - have dropped off the agenda and don't even appear on the inactive list or the long-term action list (items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda). The absence of these regulations means that the agencies have been instructed by the White House to refrain from pursuing them.


    Among the missing is the USFWS regulation that would have controlled the incidental take of migratory birds via a new permit program. Unfortunately, the USFWS was unable to complete the process prior to the end of the second Obama term. The new administration placed a hold on all new regulations (not uncommon) pending review.


    The Ornithological Council expected that this effort would not survive review as this administration is hostile to regulations generally and particularly those that impose constraints on industry. Under an administration that was willing to prosecute industry for incidental take of migratory birds, the permits would have given industry a degree of assurance that if they complied with permit conditions, they would avoid prosecution. It gave the agency an opportunity to require "best practices" and/or mitigation as a condition of the permit. However, under an administration that is unlikely to prosecute industry for anything, these permits would have been an unwelcome burden.


    The regular update of the CITES regulations has also been terminated. This is puzzling in that the U.S. is a party to the CITES treaty and has therefore committed to implementing it within the U.S. After each Conference of the Parties, the regulations must be updated to incorporate changes made at the Conference. The most recent update was issued in 2012 and there have been two Conferences (2013 and 2016) since then. Presumably, the administration will eventually allow the USFWS to update this regulation because it is necessary to honor a commitment, but given this administration's antipathy towards foreign agreements, it might even foreshadow a potential withdrawal from CITES.


    Meanwhile, this is a disappointment for the ornithological community because the USFWS had determined that it would respond to a petition filed by the Ornithological Council in 2014 to suspend or terminate a problematic requirement called "validation." In that this regulation is now gone, the OC will re-file the petition. Ironically, as it would remove a regulatory burden, it is possible that the administration will allow it to proceed.


    Also gone is the conservation education permit regulation, languishing since 2010. This regulation was of importance to ornithologists because it would have allowed "citizen salvage" - something the bird collections community has long sought. The Ornithological Council pressed for this provision for many years and was disappointed that the USFWS did not move forward to finalize the regulation, largely as a result of staffing shortages.


    Over at the USDA, a major change in policy took place in 2004 when the agency decided, as a result of litigation, that it would begin to regulate rats, mice, and birds used in research (the law exempted "purpose-bred rats, mice, and birds so the agency rule would have affected other birds bred in captivity but not for the purpose of research, wild birds brought into captivity, and wild birds studied in the field). The agency began the process of developing regulatory standards by way of an advanced notice of public rulemaking, asking the stakeholders and the public for input as to what and how to regulate. Nothing more was heard until December 2011, when the agency announced that the proposed regulation was on hold pending an assessment of the agency's resources for implementing the rule. Nothing more has been heard since then. For all practical purposes, this regulation would have had little impact on those studying wild birds because it was unlikely that the agency would have attempted to oversee such research. However, it would have impacted those studying wild birds in captivity.


    The update to the bird banding regulations has been placed on the inactive list (no agency activity is likely to occur within the next 12 months). However, this status is due to roadblocks that the Bird Banding Lab has encountered in its attempts (since 2008) to update the regulations, including a determination by the Department of Interior in 2015 that a National Environmental Policy Analysis was required. More recently, an unresolved dilemma pertaining to the inadvertent capture of Endangered Species has prevented completion of these regulations. The Ornithological Council has continued to track the situation and is convinced that the BBL is working diligently to address these issues. However, it is still worrisome in that many of the changes that are likely to have been incorporated would be useful to ornithologists.


    Two other regulations continue to move towards completion. The first is the Wild Bird Conservation Act. The specifics of this update are not known. When the regulations were first published, only CITES species were listed and exemptions for certain CITES species were granted. However, the law applies to all non-native species unless exempted. It is possible that the USFWS is now working on listing non-native species and exemptions.


    More important is an update to the section of the regulation that exempts "dead museum specimens, dead scientific specimens, products manufactured from such birds." In 2016, the USFWS apparently determined that these terms were not defined with sufficient precision and that it therefore might be necessary to obtain WBCA permits for such imports. It is hoped that the USFWS is addressing this problem in the regulatory revisions, though the Ornithological Council has suggested that this is more an implementation problem that could be addressed via guidance to the ports. The Ornithological Council has also suggested a variety of ways to implement any regulatory revision so as to minimize additional burden on ornithologists.


    Finally, the USFWS Division of Law Enforcement is moving forward with two regulations of concern to ornithologists. The first is the "fee rule" which has been in preparation for over a year and is likely to be proposed for public comment by the end of this year. Expect all fees to increase.


    Also moving forward is the rule pertaining to import, export, and transport of wildlife. Much of this update is intended to incorporate changes necessitated by the implementation of a government-wide import declaration system called ACE. It will also clarify or revise other procedures. The Ornithological Council is glad to see this rule moving forward because it will address issues raised by our 2014 petition to the Division of Law Enforcement that were of concern to the ornithological community.

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