Overview of Migratory Bird Permitting

TABLE OF CONTENTS

OVERVIEW

1.1 What is the purpose of this chapter? This chapter:

A. Identifies the authorities and responsibilities for Federal migratory bird permitting. Migratory bird permitting is part of the U.S. Fish and Wildlife Service’s (Service) Migratory Bird Program (see 720 FW 1), which administers the regulations and policy under the Migratory Bird Treaty Act (MBTA, 16 U.S.C. 703-712) and the Bald and Golden Eagle Protection Act (Eagle Protection Act, 16 U.S.C. 668).

B. Establishes the Migratory Bird Permitting Handbook as the required procedural document that Service employees must follow when implementing the program.

1.2 What is the scope of this chapter and the other chapters in Part 724? This and the other chapters in Part 724 are applicable to all Service employees who administer, oversee, and enforce migratory bird permits. 

1.3 What are staff roles and responsibilities?  For information on Migratory Bird Program staff roles and responsibilities, including the role of Permit Examiners, see 720 FW 1. 

GOVERNING STATUTES, REGULATIONS, and GUIDANCE

1.4 What are the governing statutes and regulations for migratory bird permitting? See Table 1-1 for a list of the governing statutes and regulations. The Headquarters Migratory Bird Program office is responsible for developing and implementing regulations for the statutes. Regional Migratory Bird Permit offices are responsible for making permit decisions in adherence with governing statutes and regulations. These statutes and regulations are also binding to the entities who conduct regulated activities.

Table 1-1: Governing Statutes and Regulations for Migratory Bird Permitting

*Approval to change at the Service level implies following the requirements of the Administrative Procedure Act (5 U.S.C. 551 et seq.).

1.5 What guidance applies to migratory bird permits?

A. Types of guidance. Guidance pertaining to migratory bird permitting is listed in Table 1-2. Executive Orders and Department of the Interior Secretarial Orders originate outside the Service and may apply to migratory bird permitting. The other guidance listed in Table 1-2 originates within the Service and documents the Service’s interpretation of the governing statutes and regulations. While guidance is not binding in the same way as statutes and regulations, it does represent the Service’s current way of implementing the statutes and regulations. The Headquarters office leads development and interpretation of guidance. Regional Migratory Bird Permit offices are responsible for making permit decisions in adherence with guidance.

Table 1-2: Governing Guidance for Migratory Bird Permitting

B. Guidance for employees. For fairness and consistency, Regional employees must adhere to governing guidance. If employees depart from guidance, they must document the departure with an appropriate justification and supervisory concurrence in the official permit file.

C. Guidance for permittees. The Service expects permittees to adhere to the governing guidance that the Migratory Bird Program prepares for an external audience (see Table 1-2, column 2). Any departure from guidance must still meet the requirements in the statutes and regulations. The burden of proof is on the regulated entity for demonstrating that they are still meeting the requirements of statutes and regulations despite departing from governing guidance. The Service may advise regulated entities that departing from governing guidance may increase review times, processing costs, or both.

GOALS AND PRINCIPLES

1.6 What are the goals of migratory bird permitting? Our goal is to promote long-term conservation of migratory birds and encourage joint stewardship with others. Our objective is to implement an efficient permitting program that has a strong biological foundation. Because human demands on migratory birds leave them vulnerable, we use permits as a conservation tool. Permits, including regulatory authorizations, enable the public to engage in specific activities consistent with the MBTA and Eagle Protection Act while providing a means to balance use and conservation. Permits also allow us to build partnerships and monitor activities to determine how they affect migratory bird populations.

1.7 What are the principles of migratory bird permitting? In administering permits, the Migratory Bird Program operates under the following principles:

A. Conserving migratory birds. We consider the risks and benefits of proposed activities and use the best available science and expertise to make our decisions commensurate with the risk to birds. We use permits to authorize and monitor activities consistent with the conservation of migratory birds and preservation of bald eagles and golden eagles.

B. Serving and working with people. We use technology to improve customer service and access to information. We provide the public with timely decisions in a clear and consistent manner.

C. Commitment to excellence. We coordinate across programs within the Service and develop clear policy and guidance. We design policies and processes to ensure staff time administering permits is commensurate with the conservation of migratory birds. We process permits fairly and consistently in a timely manner.

IMPLEMENTATION

1.8 What activities does migratory bird permitting cover?

A. Staff administer the program to regulate activities involving migratory birds other than hunting (50 CFR 21 and 50 CFR 22). 

B. Portions of the Airborne Hunting (50 CFR 19) and Migratory Bird Hunting regulations (50 CFR 20) require migratory bird or eagle permits as well as establish definitions used in permitting (e.g., gamebird families, non-toxic shot types, and commercial use of feathers).

C. The U.S. Fish and Wildlife Service does not administer banding or marking permits (50 CFR 21.22); the U.S. Geological Survey Bird Banding Laboratory (USGS-BBL) administers these permits.

1.9 What are the Tribal consultation responsibilities? The Service’s Native American Policy is at 510 FW 1, with a supporting Tribal Consultation Handbook. The responsibilities for staff are in Exhibit 2, 510 FW 1. For migratory bird permitting, we implement these responsibilities as follows:

A. Headquarters is responsible for Tribal engagement regarding program regulations and policies, including preparing template outreach materials (e.g., Dear Tribal Leader letters for regulations).

B. Regional leaders are responsible for conducting any requested Tribal consultation for polices, regulations, or Regional permit decisions. Headquarters staff may be present to assist during consultation if appropriate and requested.

C. Permit staff are responsible for understanding the Service’s Native American Policy and its importance so that they can better identify regulation, policy, and permitting decisions that may affect Tribal interests. Staff should communicate with their supervisors about any situations they identify where Tribal coordination may be appropriate.