U.S. Fish and Wildlife Service issues updates to MBTA permits and authorizations

[Laura Bies]

The U.S. Fish and Wildlife Service has issued a final rule making some changes to various permits and authorizations under the Migratory Bird Treaty Act. The MBTA requires individuals and institutions to secure permits from USFWS prior to activities that could take or kill migratory birds. The agency also issues regulatory authorizations in some situations, which circumvent the need for a permit if specific conditions are met.

In the final rule, which went into effect on December 31, the USFWS modified five existing regulatory authorizations (clarifying language in the authorizations that was unclear, confusing, or created unintended restrictions or allowances) and issued new regulatory authorizations for citizen salvage, activities by agency natural-resource employees, and exhibition of eagle specimens. For these activities, a permit will no longer be required.

New Citizen Salvage Authorization

Previously, the USFWS rules did not allow citizen salvage - a permit was required for any person to salvage (i.e., pick up) migratory birds found dead, including parts, feathers, nonviable eggs, and inactive nests. The new rule will allow citizen salvage of dead migratory birds (and parts, feathers, nonviable eggs, and inactive nests) without a permit. However, it is important to note that this authorization does not apply to any person who is salvaging birds for the purposes of scientific research. For research activities, USFWS will continue to require a scientific collecting permit, which also provides salvage authorization to collect samples from salvaged birds. Learn more about salvage permits here.

Possession by Public Institutions

The previous regulation authorized certain public and private institutions to possess migratory birds without a permit, under  §21.12(b)(1). The recent rule clarifies this authorization. Public entities are authorized to possess lawfully acquired migratory bird specimens without a permit for the purposes of public conservation-education programs or public archival purposes. ‘‘Public’’ means entities that are open to the general public and are either established, maintained, and operated as a governmental service or are privately endowed and organized but not operated for profit. Individuals and private for-profit entities are not considered public.

Eagle Exhibition

The rule provides a regulatory authorization at § 22.15 for public museums, scientific societies, and zoological parks to possess eagle specimens for exhibition without a permit. Note that possession of live eagles will continue to require a permit and that the regulatory authorization also does not authorize any taking of eagles. Eagle specimens must have been legally obtained under the terms of a Part 22 eagle permit or as authorized by §21.16. Any eagle specimens newly acquired for exhibition use must be approved by the National Eagle Repository as not suitable for Native American distribution. Documentation showing lawful acquisition and written authorization from the Repository for donation must accompany any newly acquired specimens before transfer to exhibition use.

Airborne Hunting Act Regulations

The Airborne Hunting Act prohibits the use of any aircraft to harass any wildlife, including migratory birds, which has raised concerns about the legality of using unmanned aircraft for ornithological research. The new rule will authorize the use of unmanned aircraft (i.e. drones) for scientific research through permits issued under the MBTA. The agency will use the most appropriate permit type for the purpose of the activity requested; for example, scientific-collecting permits for research. AHA authorization may also be added to other permit types, including for utility or communication tower purposes under special purpose utility permits or for eagle harassment associated with monitoring using aircraft with eagle incidental take permits.

Birds in Buildings

The new rule expands the regulatory authorization allowing any person to remove a migratory bird from the interior of a building or structure by expanding the authorization from ‘‘residence or a commercial or government building’’ to ‘‘residence, business, or similar building or structure where people live or work.’’

Mortality Event Authorization

The previous regulations allowed natural resource and public health agency employees to address avian disease outbreaks without a permit. The new rule expands this authorization from infectious disease outbreaks to include mortality events of suspected disease outbreaks because some mortality events (e.g., those caused by toxins or mass starvation) may have an unclear cause at the time of discovery and a timely response is necessary to ensure public safety until the cause of avian mortality can be determined.

Natural Resource Agency Employees Authorization

The rule establishes a new regulatory authorization that would allow natural resource agency employees to salvage birds, use migratory bird specimens for educational programs, transport birds to medical care, and relocate birds in harm’s way without a permit. These activities were previously authorized by special purpose permits issued to USFWS and State wildlife agency employees.

Law Enforcement Authorization

Regulations authorize DOI law enforcement personnel to conduct certain activities without a permit, and the new rule clarifies that this authorization pertains to all law enforcement agencies authorized to enforce laws consistent with the MBTA or the Eagle Act, when performing official law enforcement duties. Law enforcement agents can also temporarily designate authority to another individual to acquire, possess, transport, or dispose of migratory birds on their behalf.

Licensed Veterinarians Authorization

The rule clarifies the regulatory authorization that authorizes licensed veterinarians to provide veterinary care of sick, injured, and orphaned migratory birds including eagles.

Humane and Healthful Conditions Definition

Regulations at 50 CFR 13.41 require that any live wildlife must be possessed under ‘‘humane and healthful conditions.’’ The new rule defines ‘‘humane and healthful conditions’’ as the phrase applies to the possession of live migratory birds and live bald eagles and golden eagles and clarifies that humane and healthful conditions include all aspects of possession and care, such as handling, housing, feeding, watering, sanitation, ventilation, shelter, protection from predators and vermin, enrichment, veterinary care, and euthanasia.

The Ornithological Council submitted comments on the proposed version of this rule in July 2023. We strongly supported salvage authorization and the development of a permit system for drone use under the Airborne Hunting Act. You can read the OC’s comments here.

About the Ornithological Council

The Ornithological Council is a consortium of scientific societies of ornithologists; these societies span the Western Hemisphere and the research conducted by their members spans the globe. Their cumulative expertise comprises the knowledge that is fundamental and essential to science-based bird conservation and management.  The Ornithological Council is financially supported by our member societies and the individual ornithologists who value our work. If the OC’s resources are valuable to you, please consider joining one of our member societies or donating directly at Birdnet.org. Thank you for your support!