59710 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 

in which the Commission could lesson 

the burden on classes of carrier or 

entities and will most likely benefit 

small entities more, relative to large 

entities. 

6. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

36. None. 

Ordering Clauses 

37. It is ordered that that pursuant to 

sections 1, 4(i), 7(a), 229, 301, 303, 332, 

and 410 of the Communications Act of 

1934, as amended, and section 102 of 

the Communications Assistance for Law 

Enforcement Act, 18 U.S.C. 1001, the 

Further Notice of Proposed Rulemaking 

in ET Docket No. 04–295 is adopted. 

38. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Further Notice of Proposed 

Rulemaking, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 05–20607 Filed 10–12–05; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

RIN 1018–AI97 

Migratory Bird Permits; Educational 

Use Permits 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: We are soliciting public 

comments to help us develop permit 

regulations governing possession of live 

migratory birds and eagles for 

educational use. 

DATES: Written comments should be 

submitted by December 12, 2005, to the 

address below. 

ADDRESSES: You may mail or deliver 

comments to the Division of Migratory 

Bird Management, U.S. Fish and 

Wildlife Service, 4401 North Fairfax 

Drive, MBSP 4107, Arlington, Virginia 

22203. You also may submit comments 

via the Internet to: 

MB_education@fws.gov. See 

SUPPLEMENTARY INFORMATION for file 

formats and other information about 

electronic filing. 

FOR FURTHER INFORMATION CONTACT: 

Brian Millsap, Chief, Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service; (703) 358–1714. 

SUPPLEMENTARY INFORMATION: Please 

submit Internet comments as an ASCII 

file avoiding the use of special 

characters and any form of encryption. 

Please also include your name and 

return address in your Internet message. 

If you do not receive a confirmation that 

we have received your message, contact 

us directly at (703) 358–1714. 

Background 

This scoping notice is intended to 

help the U.S. Fish and Wildlife Service 

(the Service) gather information and 

suggestions about current practices and 

public views regarding educational use 

of live migratory birds and eagles, in 

anticipation of drafting new permit 

regulations for possession of migratory 

birds and eagles for educational 

purposes. Feedback from this notice 

will enable us to propose regulations 

that will already have benefited from 

input from the regulated community. 

(The proposed regulations will then be 

subject to the standard public notice 

and comment for purposes of crafting 

final regulations.) 

The Migratory Bird Treaty Act 

(MBTA) (16 U.S.C. 703 et seq.) prohibits 

possession of any bird listed under 

treaties between the United States and 

Canada, Mexico, Japan, and Russia. 

Birds protected by the MBTA are 

referred to as ‘‘migratory birds.’’ In order 

to possess migratory birds or their parts 

or feathers for use in educational 

programs, you must obtain a permit 

from the Service (unless you are an 

institution exempted from the permit 

requirement under 50 CFR 21.12(b)). 

The Service issues such permits to 

authorize educational programs and 

exhibits that use nonreleasable or 

captive-bred migratory birds to teach 

people about migratory bird 

conservation and ecology. Permits are 

also required to possess migratory bird 

parts and feathers for educational use; 

however, at this time, we seek input 

only on issues pertaining to possession 

of live migratory birds and eagles for 

educational use. 

Currently, because no regulations 

pertain specifically to educational use 

permits, educational activities that 

involve migratory birds are authorized 

by issuance of a special purpose permit 

under 50 CFR 21.27. That miscellaneous 

permit category is used to authorize 

activities not specifically addressed in 

existing migratory bird permit 

regulations. In the absence of specific 

regulations addressing educational 

activities using migratory birds, the 

terms and requirements governing 

educational activities using migratory 

birds are currently promulgated via a 

list of standard conditions that are 

issued with each permit. Approximately 

1200 permits for possession of live birds 

(including eagles) for educational use 

are currently active. 

In a future rulemaking, we intend to 

propose a new permit regulation that 

will incorporate many of the 

longstanding policies and practices that 

are the basis of the current special 

purpose—education permit conditions. 

However, those conditions have never 

been the subject of notice and comment 

and may benefit from revision as a 

result of public input. Also, the special 

purpose—education permit conditions 

are not specific enough to provide 

sufficient guidance to the Service or to 

permittees to address many of the issues 

that arise in the regulation of possession 

of migratory birds for educational 

purposes. By creating a new permit 

category specifically for this purpose, 

the Service hopes to bring specificity 

and clarity to this area of migratory bird 

use. 

As part of that same rulemaking, we 

intend to revise permit regulations 

governing exhibition of bald and golden 

eagles for educational purposes. Eagle 

permits are addressed through separate 

regulations from those governing 

educational use of other migratory birds 

because, in addition to the MBTA, 

eagles are further protected by the Bald 

and Golden Eagle Protection Act 

(BGEPA) (16 U.S.C. 668), which 

contains different, more restrictive 

provisions than the MBTA. We 

anticipate that the new proposed eagle 

exhibition regulations will incorporate 

by reference the regulations proposed 

for non-eagle migratory bird educational 

use, but with some variations that will 

be necessary to comply with the 

BGEPA. 

Despite the differences between the 

MBTA and the BGEPA, many of the 

same issues arise in developing 

educational use regulations for eagles as 

for other migratory birds. Most of the 

questions we pose in this scoping notice 

are not addressed directly by either the 

MBTA or the BGEPA. For this reason, 

we are soliciting input regarding both 

eagles and other migratory birds on each 

question, except where specifically 

noted. 

Regarding what the educational use 

permits will or will not authorize, some 

longstanding Service positions are wellestablished, based on traditional and/or 

existing precedents, while other issues 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 59711 

are less settled. For example, the 

Service’s current and historical policy is 

that birds protected by the MBTA, 

including eagles, may not be taken from 

the wild for educational purposes. (We 

distinguish between educational 

purposes and scientific purposes. We 

issue permits for take of migratory birds 

for scientific purposes, under 50 CFR 

21.23 (migratory birds) and 50 CFR 

22.21 (eagles).) Migratory birds held 

under educational use permits must be 

either captive-bred or nonreleasable. In 

this context, nonreleasable designates a 

bird that was taken from the wild 

because of injury, illness, or some other 

factor that rendered the bird unlikely, 

even after appropriate rehabilitative 

treatment, to survive in the wild should 

it be released. Because sufficient 

numbers of nonreleasable and captivebred migratory birds are available to 

meet the needs of educators, we do not 

believe that allowing birds to be taken 

from the wild for this purpose would be 

consistent with the MBTA’s objective to 

conserve wild populations of birds. 

Another established Service policy 

concerning educational use of migratory 

birds is the requirement that any 

program, exhibition, or display using 

those birds must include a substantive 

ecological, biological, and/or 

conservation message. Migratory bird 

possession must be consistent with the 

mission to conserve and protect wild 

populations of migratory birds. Thus, 

exhibition of such birds must be 

accompanied by a public message that 

explains the wild nature of birds, their 

ecological needs and/or conservation 

status, and their status as a public trust 

resource. Absent such messages, the 

public may assume that birds can be 

kept for personal use or entertainment. 

Demand for such birds would likely 

grow—with potentially negative 

consequences for wild populations, 

including black market trade, pressure 

to change regulations to authorize take 

from the wild, and a degraded status 

through the public’s growing perception 

of them as pets, rather than wildlife. 

Commercial trade was a large factor in 

the decline of the nation’s migratory 

bird resource and the subsequent 

enactment of the MBTA in 1918. 

Subsequently, we have prohibited most 

commercial use of birds. Today, we 

authorize some commercial use, 

including propagation and sale of 

captive-bred raptors, waterfowl, and 

game birds. And, we have permitted a 

number of for-profit educational 

migratory bird programs that include 

ecological and or conservation 

education as a meaningful component of 

their programs. However, the use of 

eagles in educational formats has been 

limited by law to nonprofit entities 

because the BGEPA restricts eagle 

exhibition permits to certain ‘‘public’’

(nonprofit) institutions (see #9 below). 

Product endorsement is prohibited 

under the current special purpose 

permit. We believe that endorsement of 

commercial products or services is not 

an acceptable use of migratory birds 

because such endorsement tends to 

obscure or even negate any educational 

component, compromising the Service’s 

mission to protect migratory birds as 

wildlife. 

Within the framework discussed 

above, the regulation of migratory bird 

possession for educational use entails a 

number of unresolved and/or novel 

issues on which we seek input from the 

public. Comments are particularly 

sought concerning the following issues: 

(1) Facilities. We seek suggestions 

regarding criteria for housing birds 

under an educational use permit. We 

wish to adopt standards that ensure 

humane treatment of the birds but 

which are flexible enough to reasonably 

accommodate different circumstances. 

Should caging dimensions be based on 

whether birds are flighted or nonflighted? Among flighted birds, should 

the rule require different caging 

dimensions based on whether the birds 

are regularly trained or exercised 

outside of their enclosures, or not? 

Should the regulation stipulate that 

certain materials be used or avoided in 

constructing enclosures? 

(2) Adequate experience. What level 

of experience should an applicant be 

required to have in order to qualify a 

permit to hold live birds for educational 

use? The Service is considering 

establishing a minimal hourly 

requirement for hands-on experience 

with the type(s) of species that the 

educator will be using in his or her 

programs. What type(s) of hand-on 

experience should count towards this 

requirement (e.g., conducting 

educational programs as a subpermittee 

under another’s permit, working as a 

migratory bird rehabilitator, working in 

a zoo)? How many hours of hands-on 

experience should be adequate to 

qualify for a permit? Need the applicant 

have worked with each specific species 

that he or she intends to use for their 

programs? What kind of certification 

should be required to demonstrate that 

the applicant has met this requirement? 

Should the regulation set forth 

different qualifying criteria between 

those who work with flighted and nonflighted birds? Or is it more important 

to develop criteria based on whether 

birds will be held on the glove during 

programs versus displayed in 

enclosures? 

What type and amount of experience 

should a person be required to have to 

qualify to hold a live eagle under an 

eagle exhibition permit? Permits to 

possess eagles for education/exhibition 

are limited to certain types of public 

institutions (see Item #9). As with other 

migratory birds, however, additional 

criteria must be met in order to obtain 

a permit to possess eagles for education, 

including the requirement that the 

applicant have sufficient experience 

handling and presenting programs with 

the type of species that will be held 

under the permit. Eagles are distinct 

from other raptors because of their size, 

strength, and temperament. Combined, 

these characteristics would appear to 

demand a greater degree of expertise 

from their handlers in order to ensure 

the safety of the handler, the public and 

the birds themselves. How much and 

what type(s) of additional experience 

should be required before a person 

qualifies to hold a live eagle under an 

eagle exhibition permit? 

(3) Audience Contact. How should the 

regulations address audience contact 

with migratory birds and eagles? In 

November 2000, the Service published a 

Request for Comments on a variety of 

issues related to falconry education 

facilities (65 FR 69726). Based on the 

response to that notice, and on other 

information, it is our current policy to 

allow members of the public without 

permits to hold trained, captive-bred 

falconry birds on the glove in falconry 

education programs that adhere to 

certain conditions developed to ensure 

that the birds are safely handled (i.e., 

the programs are conducted by a 

permitted general or master class 

falconer, the birds are held under 

educational use (as opposed to falconry) 

permits, sufficient instruction is 

provided regarding safety, activities are 

conducted at a designated locations, 

among other conditions). How should 

we treat audience contact with birds in 

more typical educational settings where 

fewer institutional safeguards are in 

place? Outside of situations where the 

facility meets qualifications to allow 

individuals to hold falconry birds on the 

glove (as noted above), should all 

audience contact with live migratory 

birds be prohibited by this regulation? 

(4) Free-flying Birds. The current 

special purpose—education permit is 

silent as to whether birds may be freeflown at open-area venues. A number of 

avian exhibitors now engage in this 

practice, sometimes using bald and 

golden eagles. We are soliciting public 

opinion on whether this activity should 

be permitted under the new regulations. 

How significant are the safety issues 

inherent in free-flying birds, both for the 

59712 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 

birds themselves, and for the audience? 

Can such venues adequately convey the 

required conservation or ecological 

message? Is the educational component 

lost, or is concern for conservation 

enhanced by the experience of 

observing free-flying birds? Are 

alternative techniques available that 

may be less risky which avian trainers 

could employ to fly birds in open 

settings? 

(5) Commercial Venues. Educators 

may charge money for programs, but 

may not use migratory birds to endorse 

any product. Should permittees be 

prohibited from conducting programs at 

businesses and other primarily 

commercial venues, even if the message 

is about conservation, wildlife biology, 

and/or ecology and not about product 

endorsement? 

(6) What Constitutes Conservation 

Education? Must the presentation be 

strictly about conservation, wildlife 

biology, and/or ecology? If not, how 

much discussion of conservation 

education is sufficient to justify 

possession and exhibition? For example, 

would a 2-minute trailer addressing the 

decline of a species in the wild justify 

authorizing the use of a bird in a 2-hour 

film about the adventures of a clever 

magpie that performs tricks for 

children? What criteria should the 

Service use to evaluate whether a 

permittee’s presentation (or film or 

other medium) incorporates sufficient 

conservation education to legitimately 

provide a conservation benefit? Should 

migratory birds be permitted to be used 

for entertainment or other purposes as 

long as conservation education 

requirements also are met? 

(7) Effect on Nonprofit Conservation 

Education. Will the opportunity to make 

a profit using migratory birds result in 

fewer educators taking their programs to 

schools and other nonprofit venues, 

with the result that fewer children and 

other nonpaying audiences will be 

exposed to migratory birds through 

conservation education? Since 

migratory birds are a public resource, 

should all permittees be required to 

conduct a minimum number of not-forprofit educational programs? 

(8) Limit on Number of Birds. Should 

the regulations establish a numerical 

limit on the birds an educator may 

hold? A fixed limit would prevent 

permittees from collecting live birds 

that they do not use in educational 

programs. However, some larger 

facilities may be able to accommodate 

greater numbers of birds than others, 

while continuing to use the birds in 

public programs. For the Service to 

select a single number of birds that 

would be appropriate for all facilities 

and venues would be difficult. Any 

maximum number we establish would 

probably be inappropriately large for 

individual educators with smaller 

facilities. If the regulation does not 

establish a fixed limit on educational 

birds, then the number of birds a 

permittee may possess will be set on an 

individual case-by-case basis. What 

criteria should the Service use to 

determine whether an educator may 

acquire additional birds? Whether we 

establish an across-the-board limit on 

how many birds a permittee may 

possess, or we provide for the number 

to be established on a case-by-case basis, 

how should the permit regulation 

address birds that were formerly used in 

educational programs, but are no longer 

suitable because of age or other 

conditions? 

(9) Who should qualify as ‘‘public’’

under the Bald and Golden Eagle 

Protection Act? This question pertains 

solely to the regulation of eagles. The 

BGEPA provides that—other than 

Native Americans, who may possess 

bald and golden eagles for religious use, 

and falconers—the only entities who 

may be granted permits for eagle 

possession are: ‘‘public museums, 

scientific societies, and zoological 

parks.’’ The Service has never 

established regulatory definitions of 

those terms. Instead, we have relied on 

the regulatory definition of ‘‘public’’

found in 50 CFR part 10, which applies 

to all the Service’s permit programs, not 

just to migratory bird and/or eagle 

permit regulations. That definition reads 

as follows: 

Public as used in referring to museums, 

zoological parks, and scientific or 

educational institutions, refers to such as 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. 

We have the opportunity to establish 

regulatory definitions for ‘‘public 

museum,’’ ‘‘public scientific society,’’

and ‘‘public zoological park.’’ We are 

not seeking to redefine the definition of 

public found at 50 CFR part 10 because 

that undertaking would require a joint 

rulemaking process involving all the 

Service programs to which part 10 

applies. Rather, we seek to define the 

three terms ‘‘public museum,’’ ‘‘public 

scientific society,’’ and ‘‘public 

zoological park’’ as part of the eagle 

permit regulations in 50 CFR part 22. 

The new definitions would apply only 

to eagle permitting regulations. Because 

an executive agency may never establish 

regulations that conflict with the statute 

or statutes that provide the authority for 

the agency’s actions, the new definitions 

must be in accordance with the 

BGEPA’s intent to protect wild 

populations of eagles. At the same time, 

to the extent possible, we would like to 

make the definitions as broad as 

possible within that intent so that the 

maximum number of otherwise 

qualified individuals are able to use 

nonreleasable bald and golden eagles for 

conservation education. 

We need to consider that the 

lawmakers who enacted the BGEPA and 

limited eagle permits to public 

museums, public scientific societies, 

and public zoological parks likely 

envisioned that the eagles in question 

would be taken from the wild, as 

opposed to being nonreleasable birds 

that are already removed from wild 

populations. While the Service cannot 

revise the BGEPA, we can attempt to 

define the terms ‘‘public museum,’’

‘‘public scientific society,’’ and ‘‘public 

zoological park’’ in a manner that 

reasonably accommodates today’s 

circumstances without conflicting with 

the BGEPA’s spirit and intent. 

The requirement in the 50 CFR part 

10 definition of ‘‘public’’ that an 

institution must be privately endowed 

serves as a form of insurance. If an 

institution were suddenly to suffer from 

a loss of financial support, the 

endowment would help to insulate the 

museum’s collection—including its live 

birds—from neglect, disposal, or 

abandonment. However well meaning 

this concept may be, we question 

whether it should remain a requirement 

for obtaining permits to keep eagles for 

purposes of education, in light of the 

fact that the eagles in question cannot 

humanely be released to the wild and 

may not otherwise be placed. 

To help us define ‘‘public museum,’’

‘‘public scientific society,’’ and ‘‘public 

zoological park,’’ we seek public input 

on the following issues: 

9a. Should endowment be a required 

condition for qualifying as a public 

museum, public scientific society, or 

public zoological park under the 

BGEPA? 

9b. Should museums, scientific 

societies, and zoological parks be 

nonprofit in order to be considered 

‘‘public’’ for purposes of obtaining an 

eagle exhibition permit? 

9c. How many hours should an 

institution be open to the public in 

order to be considered ‘‘public’’ for 

purposes of obtaining an eagle 

exhibition permit? 

9d. Should accreditation by a 

respected accrediting body be a 

requirement for public museums, 

scientific societies, and zoological 

parks, for purposes of obtaining an eagle 

exhibition permit? 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 59713 

We welcome comments on the issues 

described above and encourage the 

submission of new ideas and 

suggestions. 

Public Comments Solicited 

Interested persons are invited to 

submit comments on issues related to 

permitting possession and use of 

migratory birds for educational 

purposes. We request suggestions, 

materials, recommendations, and 

arguments from the public; permitted 

educators; avian trainers, ornithological 

organizations; environmental 

organizations; corporations; local, State, 

Tribal, and Federal agencies; and any 

other interested party. Please ensure 

that any comments submitted in 

response to this request for comments 

pertain to issues presented in this 

notice. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

by appointment during regular business 

hours. Individual respondents may 

request that we withhold their home 

address from the rulemaking record, 

which we will honor to the extent 

allowable by law. If you wish us to 

withhold your name and/or address, 

you must state this prominently at the 

beginning of your comment. However, 

we will not consider anonymous 

comments. We will make all 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Authority: The authorities for this notice 

are the Migratory Bird Treaty Act of 1918, as 

amended (16 U.S.C. 703–712), and the Bald 

and Golden Eagle Protection Act (16 U.S.C. 

668a). 

Dated: October 3, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–20593 Filed 10–11–05; 12:36 

pm] 

BILLING CODE 4310–55–P