Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1, 2 and 3

[Docket No. APHIS-2029-0068]

RIN 0579-AE61

Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the regulations to establish standards governing the humane handling, care, treatment, and transportation of birds, excluding birds bred for use in research, covered under the Animal Welfare Act. This action will ensure the humane handling, care, treatment, and transportation of birds not bred for use in research and covered under the Act.

DATES:

This rule is effective March 23, 2023. For current AWA licensees and registrants, this rule is applicable August 21, 2023. For new AWA licensees and registrants, this rule is applicable February 21, 2024.

FOR FURTHER INFORMATION CONTACT:

Dr. Cody M. Yager, DVM, MPH, Avian Specialist, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737;

cody.m.yager@usda.gov;

(970) 494-7478.

SUPPLEMENTARY INFORMATION:

Background

Under the Animal Welfare Act (AWA, or the Act, 7 U.S.C. 2131

et seq.

), the Secretary of Agriculture is authorized to promulgate standards and other requirements governing the humane handling, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers. The Secretary has delegated responsibility for administering the AWA to the Administrator of the U.S. Department of Agriculture's (USDA, or the Department) Animal and Plant Health Inspection Service (APHIS). Within APHIS, the responsibility for administering the AWA has been delegated to the Deputy Administrator for Animal Care. Regulations and standards are established under the AWA and are contained in 9 CFR parts 1, 2, and 3 (referred to below as the regulations). Part 1 contains definitions for terms used in parts 2 and 3; part 2 provides administrative requirements and sets forth institutional responsibilities for regulated parties, and part 3 contains standards for the humane handling, care, treatment, and transportation of animals covered by the AWA.

In 2002, Congress amended

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the definition of

animal

in the AWA by limiting the exclusion of birds from that definition to only those birds “bred for use in research,” which by so doing explicitly placed birds not bred for research and not otherwise excluded from regulation under the protection of the AWA. While that amendment placed birds not bred for research under the protection of the Act, the USDA did not immediately promulgate regulatory standards specific to birds, causing several animal welfare organizations to file lawsuits against the Department. In 2020, an opinion by the U.S. Court of Appeals for the District of Columbia in one such case

2

resulted in the District Court's ordering USDA to publish a proposal in the

Federal Register

to establish regulatory standards for birds no later than February 22, 2022, and to publish a final rule no later than 1 year after publication of the proposal. Establishing standards in the AWA regulations specifically for birds is necessary to ensure animal welfare and align the regulations with the intent of the Act.

1

The AWA, signed into law in August 1966, has been amended numerous times since its original passage.

2

American Anti-Vivisection Society and Avian Welfare Coalition

v.

USDA

:

https://www.cadc.uscourts.gov/internet/opinions.nsf/80846063820C52F6852584EB005413E4/%24file/19-5015-1823484.pdf.

Discussion of Comments

On February 22, 2022, we published in the

Federal Register

(87 FR 9880-9913, Docket No. APHIS-2020-0068) a proposal

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to amend the animal welfare regulations by establishing standards governing the humane handling, care, treatment, and transportation of birds, excluding birds bred for use in research, covered under the AWA. We began soliciting comments concerning the proposal for 60 days, ending April 25, 2022, and in response to several requests by commenters we extended

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the comment period by 30 days, to May 25, 2022.

3

To view the proposal, supporting documents, and the comments we received, go to

www.regulations.gov.

Enter APHIS-2020-0068 in the Search field. Among the available supporting documents is a draft environmental assessment prepared in accordance with the National Environmental Policy Act. The environmental assessment evaluates potential effects of the proposed action on the human environment.

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The comment extension notice was published on April 22, 2022 (87 FR 24072-24073, Docket No. APHIS-2020-0068).

We received 19,195 comments by the extended date. They included comments from breeders and fanciers of finches, budgerigars, canaries, parrots, cockatiels, and other pet and show birds; falconers, raptor breeders, exhibitors, hobbyists, and conservationists; businesses and educational organizations exhibiting birds to the public; ratite and poultry producers; exotic poultry hobbyists; owners and breeders of show and racing pigeons; national and regional animal welfare organizations; biologists; laboratories and other research facilities; universities; organizations representing zoos, shelters, and rescues; avian veterinarians, ornithologists, aviculturists, and organizations representing them; organizations promoting the conservation of waterfowl and wild birds; State and Federal government agencies; and members of the public.

A substantial number of comments we received consisted of duplicate and near-duplicate comments endorsed by members and supporters of several animal welfare advocacy organizations. Many of the comments submitted on the proposal expressed broad concerns about ensuring animal welfare for birds or excessive government regulation, but relatively few referred to specific parts of the proposal. We also received a substantial number of comments regarding the regulatory status of falconry, as well as comments from small businesses that breed and sell pet birds. We reviewed and considered all the comments we received prior to drafting this final rule.

Summary of Amendments to the Proposed Rule

Our review of comments received on the proposal led us to re-examine some of the provisions in the proposed rule. For reasons that we will explain in this final rule, we are revising some of regulatory provisions and requirements that we had proposed in 9 CFR parts 1, 2, and 3. Following is a list of substantive revisions that we are making to the proposed rule in response to comments:

• Excluding falconry under the definition of

animal

in § 1.1 of the regulations, as the use of birds for falconry is not covered under the uses listed for the definition in the Act: “[R]esearch, testing, experimentation, or exhibition purposes, or as a pet.”

• Revising our proposed definition of

bred for use in research

to mean “an animal that is bred in captivity and used for research, teaching, testing, or

experimentation purposes,” in order to clarify that it pertains to actual use of the birds in research rather than stated intended use at the time of breeding.

• Establishing a

de minimis

threshold exemption for sales of 200 or fewer pet birds 250 grams or less annually, and/or sales of 8 or fewer birds over 250 grams annually, which we will add to § 2.1(a)(3) of the regulations.

• Establishing a

de minimis

threshold exemption for exhibition of four or fewer raptors, which we will add to § 2.1(a)(3) of the regulations.

• Revising water and electric power requirements in proposed § 3.150(d), so that they would only be required for the purpose of complying with other standards in proposed subpart G rather than be broadly applicable to all facilities.

• Revising proposed § 3.150(e) to replace proposed food storage temperature and shelf-life requirements with performance-based requirements.

• Revising temperature and humidity requirements in proposed § 3.151(a) to allow facilities to develop temperature and humidity levels using professionally accepted standards, and removing our proposed requirement that prescribed levels be part of the written program of veterinary care.

• Revising space requirements in proposed § 3.153(b) to allow facilities to develop space requirements using professionally accepted standards in consultation with the attending veterinarian, and removing the requirement that the space requirements be part of the written program of veterinary care.

• Revising the environmental enhancement plan requirement in proposed § 3.154 in order to allow facilities to document the plan using professionally accepted standards and in consultation with and approved by the attending veterinarian, and removing the requirement that the plan be part of the written program of veterinary care.

• Revising proposed § 3.154(a)(3) to allow individuals other than the attending veterinarian to make decisions of compatibility by facilities based on professionally accepted standards, and removing the requirement that the plan be part of the written program of veterinary care.

• Revising a proposed daily feeding requirement in § 3.155 in order to allow exceptions as directed by the attending veterinarian, normal fasts, or other professionally accepted practices.

• Revising proposed § 3.161(f) to require that if delays will cause a shipment of birds to arrive more than 12 hours later than originally scheduled, the carrier must contact the consignor or the consignee for food and water needs.

• Revising proposed § 3.161(g) to require that carriers and intermediate handlers not accept unweaned birds for transport unless instructions for conditions of transport to ensure the health and well-being of the birds are specified and written by the attending veterinarian, and signed within 10 days of shipment, and removing the requirement that the plan be part of the written program of veterinary care.

• Revising proposed § 3.162(b)(1) by removing restrictive ventilation requirements that prevented use of shipping enclosures that would otherwise meet APHIS standards.

• Revising proposed § 3.164(a) to waive the requirement to offer weaned birds food and potable water within 4 hours before being transported in commerce if the attending veterinarian approves a delay or in accordance with professionally accepted standards.

Substantive comments are discussed below under the sections within 9 CFR parts 1, 2 and 3 they address.

General Comments

Many commenters asked that we prohibit trade of all captive birds. Some commenters asked that we require the release of all captive birds into their natural habitats.

APHIS does not have the authority to prohibit the legal trade of birds or to require the release of captive birds into their natural habitats.

Some commenters stated that we have not demonstrated that the current welfare of birds in breeding facilities are deficient.

We disagree with the commenters. As we noted in the proposed rule, APHIS has received complaints from the public about inhumane conditions for birds, including many comments submitted for this rulemaking. While APHIS does not currently inspect facilities engaged exclusively in avian breeding and exhibition, we do inspect mammals at mixed animal facilities that also house birds. During these inspections, if inspectors encounter birds kept in inhumane conditions they are instructed to report what they see to the appropriate local or State authority. Lastly, Congress' amendment to the AWA, along with the court opinion noted above, are both acknowledgements that welfare standards for birds are necessary, and APHIS is promulgating such standards accordingly.

A commenter asked how the rule can be applied to a large, newly regulated community given the agency's limited resources. One commenter suggested that the rule be delayed from implementation until the necessary agency resources are available.

APHIS has sufficient resources to fulfill the mandates of the Act and successfully employs a risk-based process to determine frequency of facility inspections and enforce the regulations fairly. We intend to use this approach in our regulation and enforcement of standards for birds. As to delay of implementation, we are establishing a delayed applicability of the regulations, which we address below, in order to give persons additional time to comply with the regulations. The delay is not associated with the availability of agency resources.

A commenter asked that APHIS consider giving all licensed facilities one provisional inspection cycle to fix, modify, or challenge noncompliance issues, noting that many of the “untested” requirements in the proposal may prove to be unwarranted and possibly harmful to bird welfare. Another commenter stated that a 5-year implementation period must be established to allow time to disseminate regulatory information to aviculturalists and for facilities to perform retrofitting to comply with the regulations. The commenter added that facilities existing at the time of implementation should be “grandfathered” if their primary enclosures are sound and healthful, until structural improvements are required.

An implementation period will be provided for all facilities conducting covered activities to ensure compliance with these standards. During this period, we intend to confer with facilities and offer guidance to help them identify and correct any noncompliances prior to the date that the rule becomes applicable. While the regulations will be effective 30 days after issuance of this final rule, they will not immediately be applicable to regulated persons and businesses. For current AWA licensees and registrants, the rule will become applicable 180 days after date of publication. For new licensees and registrants, the applicable date will begin 365 days after date of publication. As new licensees may be unfamiliar with AWA licensing and inspection practices or lack the resources required to comply with the regulations, we have provided them with additional time to attain compliance. Based on our own prior knowledge of the industry, the comments that we received, and the nature of the compliance standards in this final rule, we consider this sufficient time for entities to come into

full compliance with the standards. With respect to other commenter recommendations, we do not consider a 5-year implementation period or a “grandfather” clause for some facilities to be necessary or conducive to animal welfare. We also note that the AWA itself sets forth minimum standards for care of covered animals, which legally precludes a “grandfather” clause for facilities that are not in compliance with those particular standards.

A commenter proposed that we have an additional comment period so that stakeholders can address all their concerns with the proposal.

In response to commenter requests, we extended the comment period for 30 days to May 25, 2022.

Several commenters stated that APHIS has not accurately estimated the number of people who will be impacted by the proposal and that the actual number is much larger than what is cited in the economic analysis.

In the economic analysis that accompanied the proposed rule, we acknowledged that a great deal of uncertainty surrounds the number of facilities affected by this rule, and we requested data from the public that may indicate a number of facilities different from what we estimated in the analysis. We explain in more detail in the economic analysis our estimate of the number of facilities affected.

We received several comments indicating higher numbers of affected entities, one of which provided a detailed discussion of what the commenter considered to be the number of potential new licensees. Based on information the commenter provided, we adjusted our estimate of potential new facilities breeding or distributing birds that could require an AWA license from 1,625 to a range between 1,625 and 3,563.

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Including new registrants, we estimate that there will be between 5,975 and 7,913 newly regulated entities in total. Of the facilities that we estimate may be covered under the regulations, we continue to believe many are already maintaining their facilities at or above the minimum standards of the proposal and would not need to make significant changes in order to come into compliance with the standards.

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Details of how APHIS arrived at this revised estimate are explained in the Regulatory Impact Analysis that accompanies this rule.

A commenter asked that APHIS include a regulatory provision allowing for the emergency transfer or sale of breeding groups of birds belonging to deceased breeders, or for persons with birds affected by natural disasters. The commenter added that it is critical to transfer birds before they are lost for lack of care.

Under § 2.1(b)(1), licenses are issued to specific persons, and are issued for specific activities, types and numbers of animals, and approved sites. Although a new license must be obtained upon a change of ownership resulting from an owner's death, APHIS can grant a one-time exemption in such situations to allow for sale or transfer of animals. In addition, every AWA licensee is required under § 2.38(l) to have a contingency plan in place for the humane handling, treatment, transportation, housing, and care of their covered animals. The plan is required to address emergencies such as natural disasters and animals at risk of neglect from disruption of care, including death of the breeder or responsible person, and allows for the sale and transfer of such animals. Given these provisions, we do not consider a new regulation to cover such contingencies to be necessary.

A commenter suggested that the Animal Care Inspection Guide should be applicable to all birds in captivity.

The Animal Care Inspection Guide serves as an aid for APHIS Animal Care personnel when inspecting USDA licensed and registered facilities. As is currently the practice with other covered animals, APHIS inspectors will use the guide, updated for avian facilities, to ensure consistency and accuracy when inspecting facilities that conduct activities involving birds not bred for use in research and therefore covered under the AWA regulations.

A coalition of three national avicultural organizations submitted a survey

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of aviculturalists, of which 282 provided responses. The survey asked respondents to provide information about topics of concern to them in the proposed rule, including exemption thresholds, recordkeeping requirements, inspection procedures, environmental enhancement, and access to veterinarians with avian expertise. The commenter reviewed the responses in light of how the respondents, many of them home-based businesses, might be affected by the proposed regulations.

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See comment and survey at

https://www.regulations.gov/comment/APHIS-2020-0068-27043.

APHIS appreciates the commenter providing us with the survey and notes that we have addressed many of the concerns it expresses about compliance, privacy, and recordkeeping. The commenter noted that over 70 percent of respondents kept more than four breeding females, and that many small aviculturalists are uncertain about counting breeding females for the purposes of determining exemption status. Under “Licensing Exemptions” below, we indicate that we have adjusted how the de minimis exemption threshold is determined by basing it on number of birds sold annually, rather than on number of breeding females. This change will exempt from inspection and licensing many more facilities as a result. For home-based facilities that will require licensing and inspections, we emphasize that APHIS only inspects for compliance within the areas of a domicile where business is conducted. Finally, as survey respondents use many means of inventorying and identifying their birds, from cage cards to software, the standards we are finalizing accommodate each of them. We intend to provide ongoing guidance on these topics as needed to help current and newly licensed entities with birds achieve compliance.

A commenter stated that a Federal-level database collecting data about the birds inspected would allow for accuracy of breeding numbers. Another commenter stated that all inspection and annual reports, as well as actual cases, assessments, and penalty discounts should be published on the APHIS website to increase public transparency.

As is currently the case with inspection of other species, APHIS will maintain inspection information for birds and use it to determine compliance. In addition, the USDA-Animal Care Public Search Tool

7

is a publicly searchable database that includes persons licensed and registered under the AWA, as well as inspection reports, enforcement actions, and research facility annual reports of animal use. We are unclear as to what assessments or discounts the commenter refers to, but we do support public transparency of APHIS animal welfare activities even as we respect the personal information and privacy of persons subject to AWA regulations.

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The USDA Animal Care Public Search Tool is available at

https://aphis-efile.force.com/PublicSearchTool/s/.

A commenter stated that regulations should be imposed for all “commercial reseller/pet stores” to have a basic course on proper care of species and sanitation.

While businesses defined as

retail pet stores

in § 1.1 are exempt from licensing and regulation, we support efforts to educate such businesses on humane avian care and sanitation practices.

A commenter urged APHIS to prohibit the capture of wild and exotic birds, including their eggs, for any reason.

Within the United States, the capture and possession of most birds from the wild, including eggs, is regulated by the U.S. Fish and Wildlife Service (USFWS) regulations under the Migratory Bird Treaty Act (MBTA). USDA has neither the authority to enforce provisions of the MBTA nor the authority under any other statute delegated to the Agency to enforce such a general prohibition.

A commenter stated that the proposed regulations fall short of the “Five Freedoms” of animal welfare that have been adopted worldwide.

Our statutory obligation for this rulemaking is to enforce the provisions of the AWA regarding standards for birds other than birds bred for use in research. The “Five Freedoms,” in contrast, are a set of internationally recognized animal welfare standards that advocate freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury, and disease; freedom to express normal behaviors; and freedom from fear and distress. While APHIS does not derive our statutory authority with regard to animal welfare from the “Five Freedoms,” we respectfully disagree with the commenter, as the standards for birds that we have established under the provisions of the AWA address all five freedoms.

A commenter noted that quarantine practices for birds are not mentioned in the proposed rule and that a section on quarantining should be included.

While we do not use the term “quarantine” in the proposed standards for birds, we did include a provision in paragraph (c) of § 3.160, “Compatibility and separation,” stating that “[b]irds that have or are suspected of having a contagious disease or communicable condition must be separated from healthy animals that are susceptible to the disease as directed by the attending veterinarian.” We consider this requirement to constitute a quarantine under normal conditions. Furthermore, the attending veterinarian has the authority to require quarantine practices if necessary for bird health or welfare.

A commenter asked whether our estimated number of respondents under the Paperwork Reduction Act referred to respondents to the proposed rule or the estimate of licensees.

The estimated number of respondents refers to the number of licensees and registrants affected by the rule.

The same commenter stated that most activities requiring forms also require original signatures, so aviculturists must fill out the form, sign it, and store it on paper or scan again and store electronically. The commenter added that this is onerous for small breeders and exhibitors.

Few covered activities, such as acquisition and disposition of animals, require a licensee or registrant to complete forms, and the time required to do so is minimal. Only the license application requires a signature, and those can be completed and signed electronically. Information provided on forms is important to establishing a record of animal welfare at the facility.

9 CFR Part 1: Definition of Terms

In § 1.1, we proposed to revise the definitions of

carrier, exhibitor, farm animal,

intermediate handler, pet animal,

retail pet store,

and

weaned.

We also proposed adding new definitions of

bird, bred for use in research,

and

poultry.

These changes were intended to incorporate birds that are newly subject to licensing and regulatory standards under the AWA. The comments for each of the revisions and additions to § 1.1 are addressed below. Other terms currently defined in 9 CFR part 1 that pertain to AWA licensees or registrants in general will also pertain to persons newly licensed or registered as bird dealers, exhibitors, operators of auction sales, or carriers and intermediate handlers. For example, the term

inspector,

defined as “any person employed by the Department who is authorized to perform a function under the Act and the regulations in 9 CFR parts 1, 2, and 3,” will also pertain to inspectors performing functions related to verifying compliance with the regulations applicable to birds.

A few commenters proposed that we include additional terms to define. One commenter proposed that we add the terms “bird breeder,” “bird dealer,” and “bird exhibitor” to the regulations in order to differentiate them from mammal breeders, dealers, and exhibitors.

We are making no changes in response to the commenter, as we see no benefit for the purposes of animal welfare to create standalone definitions that differentiate breeders, dealers, and exhibitors based on species. We note, moreover, that this has not been APHIS' practice to date with the many species of mammals that are subject to the AWA.

Animal

We noted in the proposed rule that, in 2002, Congress amended the definition of

animal

in the Act to specifically exclude birds, rats of the genus

Rattus,

and mice of the genus

Mus,

bred for use in research, and that APHIS amended the definition of

animal

in the regulations to be consistent with this change. The amendment means that birds bred for use in research are not covered under the AWA or its regulations.

A commenter stated that “they would like to see all official wording changed that states birds are excluded from the AWA once this regulation is passed.”

When this final rule becomes effective, we intend to make the necessary changes in APHIS guidance, such as in the Animal Care Inspection Guide, that does not currently reflect that birds not bred for use in research are regulated under the Act.

Several commenters asked if raptors would be exempt from licensing or excluded from coverage under the Act, while other commenters remarked positively upon their inclusion.

We are not excluding or exempting raptors from licensing, although we have included an exhibition exemption threshold for persons with four or fewer raptors in exhibition for any purpose and is not otherwise required to be licensed, which we discuss below. However, we have amended the definition of

animal

to exclude from coverage all activities involving falconry, which is the practice of training and using certain raptors to hunt wild animals. We made this change in response to the many commenters noting the cultural and historical agrarian roots of falconry, and because falconry falls outside of the regulated uses specified in the definition of

animal

in the Act: “[R]esearch, testing, experimentation, or exhibition purposes, or as a pet.” Moreover, USFWS regulations require a permit to possess raptors according to use, none of which include use as a pet. Many commenters also noted that falconers are required to serve an apprenticeship under a master falconer and undergo extensive training in caring for and handling birds as prerequisites to acquiring State and Federal falconry permits. This extensive degree of oversight further supports our interpretation of the AWA not to regulate falconry.

Along with the practice of falconry, exhibitions of birds that solely promote the art of falconry will also be excluded from regulation, much in the same way that exhibitions of animals that promote the agricultural arts are not regulated. APHIS will determine whether an exhibition qualifies as promoting falconry on a case-by-case basis.

Bird

We proposed to add a definition for the term

bird

as being any member of

the class Aves, excluding eggs. This definition implies that a bird is no longer an egg when the bird is fully separated from the eggshell. As we noted in the proposed rule, we considered regulating the welfare of live avian eggs but there was not enough scientific data available for each species of bird to determine the stages of egg development at which human management can cause an animal welfare concern.

One commenter stated that the proposed definition of

bird

should not require that the bird be entirely separated from the shell. The commenter explained that while it is necessary to maintain humane care of the bird after it has separated from its eggshell, there should be care in place for birds in the process of hatching but not yet separated from the shell.

We agree with the commenter that a bird in the process of hatching should be defined as a bird. For this reason, we are revising the definition of

bird

to mean “any member of the class Aves, excluding eggs, but including birds once the hatching process commences.”

Another commenter asked that if eggs are excluded from the definition, whether an egg collected from the wild and brought into captivity would not be regulated, but a bird hatched from that egg would be regulated. The commenter also asked what happens if the location of breeding of the dam and sire are unknown to the individual that obtains the unregulated egg, adding that the definition makes tracking dam and sire information for an egg a requirement, thus regulating the egg in some capacity.

An egg collected from the wild, regardless of whether it hatches, is likely to be from a migratory bird and therefore regulated under the MBTA by USFWS. We do not intend to regulate eggs, but if the egg hatches and the bird is not bred for use in research, it may be regulated under the AWA depending on its use. Information about the dam and sire of the egg is not a consideration in whether the egg is regulated.

Another commenter asked that the proposed definition of

bird

be clarified. The commenter stated that the rule does not define what birds are included in the definition and asked if it includes poultry and waterfowl or only domesticated birds.

All species of Aves are included under the definition of

bird,

although under § 2.1(a)(3) several uses of poultry and domestic waterfowl are exempt from AWA licensing requirements. Wild waterfowl are regulated under the MBTA by USFWS.

Bred for Use in Research

The definition of “animal” in section 2132 of the AWA means “any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or other such warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet . . .”. The definition in the Act excludes “birds, rats of the genus

Rattus,

and mice of the genus

Mus,

bred for use in research.” Birds

not

bred for use in research,

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unless excluded for agricultural or other uses listed in the definition of “animal,” are considered to be animals under the Act.

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Unless otherwise excluded from the definition, birds are implicitly defined as animals in the Act and regulations by being “warm-blooded.”

We proposed to define the term

bred for use in research

so that the regulations are consistent with the Act and to make clear what birds are included under the term and therefore not covered under the Act or regulations. The term as we proposed it means “an animal

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that is bred in captivity and is being used or is intended for use for research, teaching, testing, or experimentation purposes.” Along with “research,” we added “teaching, testing, or experimentation” to our proposed definition because the Act includes these uses as elements of research under its definition of “research facility.”

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The apparent irony of referring to a bird bred for use in research as an animal excluded from the definition of “animal” is noted.

Research facilities under the AWA are required to register with APHIS and comply with the regulations, including those specific to research facilities in part 2, subpart C. Research facilities must keep records and report regularly on animal use activities, including common names and numbers of animals actually used in experiments and other research, and names and numbers of animals that the research facility is holding for use in teaching, testing, experiments, research, or surgery but has not yet used for those purposes.

A substantial number of persons commenting on our proposed definition of

bred for use in research

indicated that the definition does not clearly delineate which uses of birds would be considered bred for use in research and which would not be, and many asked how APHIS would regulate based on a facility's intended use versus actual use of animals.

The commenters' questions on this subject highlight an important point, in that the use of the term in the AWA itself is ambiguous: “Bred for use in research” could be construed to mean bred with the intended use at the time of breeding being future use in research, or bred and used in research at a research facility. Several commenters pointed out that the intended use for the bird at the time of breeding may not be its ultimate use: A bird could be bred intending to be used in research and later sold or exhibited if determined to be ill-suited for research, or, alternatively, bred for purposes other than use in research and later determined to be suitable for research and used in a study or experiment.

The fact that intended use of animals can differ from actual use later on poses two areas for revision for our rule and specifically our proposed definition of

bred for use in research.

First, the definition leaves open a broad path for breeders to evade regulation: If APHIS regulated based on intended use of a bird, a breeder could simply state that the bird is intended for research and subsequently divert it to another, regulated use, thus circumventing the regulations entirely. Second, it creates a compliance challenge for registered research facilities, which are required to follow AWA regulations specific to research facilities: At what point does a bird in their possession stop being an AWA-covered, regulated animal and begin being a bird used in research? Could a stated intent to use all birds in research serve to exclude all birds in their possession from regulation, even those not being used in research? In other words, when do the regulations apply to a particular bird?

For these reasons, we decided that the most defensible interpretation of “bred for use in research” in the AWA is that the bird is bred in captivity and used for research at a research facility. “Used for research” applies to testing, experimentation, teaching, and research, including activities such as holding, conditioning, acclimating, and preparing animals for procedures. “Used for research” is unambiguous and makes it easier for the regulated community and APHIS to determine which birds are to be regulated and which are not, and eliminates the challenges of regulating for intended use. Accordingly, we are amending our definition of

bred for use in research

to mean “an animal that is bred in captivity and used for research, teaching, testing, or experimentation purposes.” We address the comments below in light of the revised definition.

One commenter stated that the definition of

bred for use in research

in the proposed rule is unclear as to whose

intent is at issue—the owner of the bird at the time it is bred or the ultimate user of the bird. The commenter asked us to clarify the meaning of “intended for use,” including how intent is determined and whose intent is at issue, and that we affirm that a change in intended use will not by itself result in being regulated.

We acknowledge above that intended use would be difficult for inspectors to externally verify and could expose an impermissible exception in the regulations, as breeders excluded from regulation based on their intention to breed birds for use in research could later divert the birds to a different use such as pets or exhibition. Under the revised definition, only bred and used for research, not a change in intended use, would dictate a bird's regulatory status.

As we have noted, a bird may be intended for regulated purposes such as for exhibition, only later to be determined to be suitable for and used in research. On this point, a commenter asked if the proposed definition would include birds ultimately acquired by a laboratory for research, but that had been bred for the pet trade, such as a parrot, finch, or other bird bred as a companion animal. Another commenter asked if zebra finches bred for the pet trade but purchased by a research institution would be covered by the proposed amendment. Another commenter asked whether birds for which the intent of use has changed over their lifetime, for example, birds raised as poultry to provide eggs, but later given to a biomedical research institution for teaching or research, are to be regulated.

In keeping with our revised definition, birds that are bred in captivity and used by a research facility for research, education, or product testing, would be considered “bred for use in research.” Such birds would not be covered under the AWA or its regulations at the time that they are so used. Their intended use prior to being used for research would be immaterial for the purposes of meeting the definition.

A commenter using wild and captive-bred birds in research asked us to address their concerns as to which birds used for research would be covered under the proposed regulations: Offspring of wild birds brought into captivity and bred; birds used in research that are obtained from wholesalers who breed birds for the pet trade; offspring of birds obtained from wholesalers, and birds not bred for research but raised in captivity. The commenter added that knowing the status of each is important as it impacts the specific standards by which birds are maintained and used with respect to identification, housing, and other points on which compliance will be determined.

Birds obtained from their natural habitat (

i.e.,

“the wild”), are covered under the AWA and do not meet the definition of

bred for use in research

because the Act requires that such birds be “bred,” which we interpret to mean hatched and raised in captivity. Moreover, possession of wild birds is likely subject to USFWS regulations. Offspring of wild birds, if hatched and bred in captivity, would not be covered under the regulations if used for research, nor would birds obtained from wholesalers and used for research. Birds not bred and used for research but raised in captivity would be regulated if used for any covered activity, but would not be regulated if used for research or exempted under other provisions.

Several commenters stated that when a wild bird is bred in captivity and intended to be used for more than one purpose, it should not be covered under the regulations so long as the primary purpose is research, teaching, testing or experimentation.

Under the revised definition of

bred for use in research,

a bird hatched and bred in captivity and used for research would not be covered. If the bird is used for any covered purpose prior to being used for research, it would be covered under the regulations until used in research.

A commenter stated that APHIS should provide guidance as to how research institutions should document which birds in their possession meet the definition of

bred for use in research.

The revised definition of the term, described above, simplifies determining whether birds meet the definition: if they have been bred in captivity and used for research, they meet the definition.

A commenter asked whether APHIS has considered the challenges to the supply of birds used for research that this proposed regulation likely will cause, if enacted.

As birds bred for use in research are excluded under the definition of

animal

in the Act and regulations and not covered under the proposed regulations, we do not expect this rulemaking to impose regulatory pressures on the supply of birds used for research.

A commenter stated that the phrase “bred in captivity” is not species-specific, as both domesticated and wild species may be bred in captivity, and noted that wild birds bred in captivity for use in research fall under the definition of

bred for use in research.

The commenter stated that footnote 12 in the proposal, which indicates that research facilities using wild-caught birds to conduct investigations into animal propagation activities are subject to the rule's provisions, should be revised by removing “investigations into animal propagation” as a regulated research activity.

While offspring of wild birds hatched in captivity and bred for use in research would be excluded from regulation, birds that are captured in the wild and held for use in research would be subject to regulation, as those birds have not been bred in captivity but were taken from the wild.

A commenter asked that we consider changing wording in the proposed definition from “bred in captivity” to “born or hatched in captivity” since the breeding activity may occur at a location outside of the current owner's knowledge.

“Bred in captivity” encompasses the act of being born or hatched in captivity under the direction of a breeder, regardless of the location where it occurs. It differentiates bred birds from wild, caught birds.

A commenter suggested that we simply delete the definition of

bred for use in research

because it includes birds bred for purposes other than research, such as teaching and testing. Another commenter agreed, stating that the definition, as worded, impermissibly broadens the scope of excluded birds beyond those simply bred for research.

We are not removing the term or its definition, which we have revised above. Under the definition of

animal

in the Act, regulated uses include the use of birds in “research, testing, and experimentation,” all of which are activities integral to research conducted at research facilities. For this reason, we consider “use in research” to be inclusive of teaching, testing, and experimentation, and their supporting activities when these activities are conducted at research facilities.

Finally, during the implementation period for this final rule, we will respond to any research facilities having questions about the regulatory status of their birds.

Carrier

In the regulations,

carrier

is defined as “the operator of any airline, railroad, motor carrier, shipping line, or other enterprise which is engaged in the business of transporting any animals for hire.”

We proposed to revise the definition of

carrier

to include an exemption from AWA registration for anyone

transporting a migratory bird covered under the MBTA from the wild to a facility for rehabilitation and eventual release in the wild, or between rehabilitation facilities. As transport of such migratory birds is regulated by USFWS, any person transporting or otherwise possessing a migratory bird is required to obtain authorization to do so from that agency. We added this exception because APHIS and USFWS agree that the continued transport of MBTA-covered birds for rehabilitation without additional regulation is beneficial for species preservation and outweighs any potential risk to animal welfare.

One commenter expressed concern that exempting transporters of wild birds for rehabilitation purposes or release into the wild creates a loophole through which such birds may be brought into captivity. The commenter added that the exemption, as stated here and elsewhere in the regulations, must be amended to indicate that the exemption is effective only if the bird is released from human guardianship upon completion of medical care or rehabilitation.

We disagree with the commenter, as not all wild birds that are transported for rehabilitation purposes under the exemption are released into the wild. Some may need to be euthanized, and others may no longer be able to survive in the wild and must remain captive, at which point they would be regulated and covered under transportation and care standards.

Another commenter asked that the phrase “and eventual release in the wild” should be omitted from this proposed revision and from that of

intermediate handler,

as not all migratory birds requiring rehabilitation are suitable for release.

We are making no changes in response to the comment as removing the reference to release also removes the exemption for any transporter moving a bird to a location where it is to be released.

A commenter recommended that if APHIS retains the wild bird rehabilitation exemption, it should clarify in the rule and regulatory text that “rehabilitation” is a regulated term and should also provide definitions and guidelines consistent with or stricter than USFWS guidelines for rehabilitation permits.

We are taking no action in response to the commenter's request. The AWA does not regulate rehabilitation activity or issue rehabilitation permits, and our use of the term “rehabilitation” is a reference to USFWS's issuance of rehabilitation permits. The conditions under which USFWS issues such permits are found in 50 CFR 21.76. The definitions of

carrier

and

intermediate handler

thus refer to rehabilitation only in the context of transporting wild birds covered under MBTA regulations and under the USFWS's understanding of that term.

Dealer

Although we proposed no changes to the current definition of

dealer

in § 1.1 of the AWA regulations, a commenter requested that APHIS expressly exclude breeders and purchasers of racing pigeons from the definition.

We see no need to provide such an exclusion from the definition, as in the

exhibitor

definition below we already exempt this activity from regulation on grounds of being historically associated with the agricultural arts and sciences.

Exhibitor

We proposed to revise the definition of

exhibitor

to include persons who exhibit birds not bred for use in research. An

exhibitor

is currently defined as any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. Excluded from the term, and therefore not regulated under the AWA regulations, are organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, field trials, coursing events, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary.

As with horse and dog races, and purebred dog and cat shows, we noted in the proposal that we consider pigeon races and bird fancier shows to be exhibitions rooted historically in the advancement of agricultural arts and sciences. Animals exhibited or intended for exhibit in agricultural exhibitions that USDA has determined are intended to advance agricultural arts and sciences are not covered under the AWA. Therefore, we proposed amending the definition of

exhibitor

by adding pigeon races and bird fancier shows to the list of exhibitions excluded from coverage. In addition, for clarity, we added free-flighted bird shows as an illustrative example of an animal exhibition that is included under the definition of

exhibitor,

although persons who free-fly their birds solely for their own use or enjoyment, without compensation, are not required to obtain a license for that activity.

A few commenters asked that we not exclude pigeon races and bird fancier shows as protected exhibitions, with one stating that pigeon racing is an exhibition activity with animal welfare and disease risks and should be regulated, and adding that it is difficult to think of pigeon races as advancing agricultural arts and sciences. Similarly, another commenter disagreed with our position that pigeon racing has agricultural origins, noting that the sport is instead rooted in “the use of homing pigeons for non-agricultural activities since ancient times,” and added that homing pigeons used in racing are not farm-type animals. The commenter also disagreed with our reference to horse and dog shows as examples of other activities similar to pigeon racing based in agriculture, noting that horse and dog racing comprise a separate exclusion under the definition of exhibitor and should not necessarily be used as a basis for an agriculture-based exclusion.

We are making no changes in response to the commenters' request. Under the definition of

exhibitor

in the AWA, the USDA Secretary has the authority to determine whether exhibitions are intended to advance agricultural arts and sciences and to exclude them from regulation on that basis. While pigeons are not typically kept on farms as a food animal, the exemption in the AWA's definition of

exhibitor

is thus broader than mere use of an animal on the farm. We also disagree that pigeon racing should be considered aligned with the use of homing pigeons, and maintain that the act of racing pigeons has a distinct agricultural heritage. Staged agricultural exhibitions of racing pigeons have occurred since the 1800s. Moreover, these have occurred without a demonstrated history of spread of disease or lapses in animal welfare.

Because we are excluding falconry from the definition of

animal

in § 1.1, we are also amending the proposed definition of

exhibitor

to also exclude falconry, as we received many comments noting that falconry birds are not typically used under any of the uses under the definition of

animal

in the Act: “[R]esearch, testing, experimentation, or exhibition purposes, or as a pet.” Several commenters noted that falconers rarely exhibit their birds for purposes outside the practice of falconry. Commenters also cited the historical and agrarian roots of falconry, and the fact that falconers are already regulated, required

to be sponsored under a master falconer, undergo extensive training, and demonstrate competence with controlling their birds. They must also hold both State and Federal permits, and Tribal permits as applicable.

A commenter stated that APHIS should clarify the proposed regulations with regard to the scope of exhibitor facilities to be regulated, as it is unclear whether they apply to wildlife sanctuaries, which also exhibit birds for commercial and fund-raising purposes. The commenter added that if APHIS is unable to implement new regulations for all such facilities, then it should withdraw any new regulations until it can do so.

Captive birds in a wildlife sanctuary that are exhibited for the purposes described by the commenter would be regulated. Birds undergoing rehabilitation would be exempt from regulation provided they are not exhibited and physically separated at the facility from exhibited birds. Without separation, the birds undergoing rehabilitation could affect the health or well-being of the exhibited birds. APHIS intends to implement and enforce the regulations for all such facilities covered under the AWA.

A commenter noted that educational exhibits developed for a primary purpose other than animal exhibition may “incidentally” include birds,

e.g.,

an indoor arboretum in which wild birds are present, or in which a few birds are kept, and the birds themselves are not being exhibited but are in an exhibit of an entirely different nature. The commenter encouraged APHIS to consider revising the definition of

exhibitor

by adding an exclusion for such incidental exhibits with birds.

We are making no exclusions from the definition of

exhibitor

as requested by the commenter because one is not necessary. If wild birds inadvertently enter an exhibit, they are not exhibited birds and efforts should be made to remove them if they pose a threat to the welfare of covered animals in the exhibit.

A commenter asked us to clarify whether the definition of

exhibitor

includes individuals on social media, or “influencers,” who present their birds to the public through social media platforms and receive compensation. The commenter opined that influencers are covered under the proposed standards but is unclear if APHIS intends to apply the regulations to these persons.

Birds that would be covered under the Act if exhibited live would also be covered if exhibited via social media. Any exemptions for online exhibitors would be the same ones available to persons exhibiting animals live.

A commenter objected to the inclusion of free-flighted bird shows under the definition of

exhibitor

and requested that APHIS exempt individuals who free-fly personal pet birds and members of free-flying clubs who fly their birds in public. Similarly, another commenter asked us to provide examples of free-flighted shows covered under the regulations and stated that free-flighted birds should not be subject to licensing unless someone has more than eight birds that fly at one time. Another commenter asked that the definition of

exhibitor

be amended to exempt the use of raptors protected under the MBTA for educational uses, particularly free-flighted bird shows.

Falconers and others who free-fly birds for their personal use and enjoyment and not for exhibition purposes are not covered under the regulations. Persons who exhibit birds to the public for any purpose and who are not otherwise exempted are subject to AWA licensing.

Pet Animal

Under the current regulations,

pet animal

is defined as “any animal that has commonly been kept as a pet in family households in the United States, such as dogs, cats, guinea pigs, rabbits, and hamsters. This term excludes exotic animals and wild animals.” We proposed including birds under the definition of

pet animal

and amending the illustrative list of animals contained in the definition by adding examples of pet birds. We proposed that such birds include, but are not limited to parrots, canaries, cockatiels, lovebirds, and budgerigar parakeets. We listed these particular birds because they constitute the majority of birds bought and sold as pets in the United States and are thus a good illustrative example of what constitutes a pet bird.

A few commenters asked that we amend the list of birds in the definition because cockatiels, lovebirds, and budgerigar parakeets are all types of parrots. One commenter suggested that parrots, canaries, finches, and doves would serve as better examples of pet birds.

The list we provided of pet birds is intended for illustrative purposes, and we do not intend it to be exhaustive. We acknowledge that birds listed by the commenter can be kept as pets but see no need to add them to the definition.

Numerous commenters disagreed with our proposed inclusion of birds under the definition of

pet animal.

Many commenters expressed concern that if such birds are defined as pet animals, they would not receive protection, as retail pet stores could confine and sell them without obtaining a license and that, for this reason, parrots and other bird species should never be kept or sold as pets.

The inclusion of birds in the definition of

pet animal

will only improve the welfare status of birds sold as pets at retail, as many currently unlicensed outlets already selling birds as pets will need to become licensed. Although a retail outlet that sells birds meeting the definition of

pet animal

may meet the definition of a

retail pet store

in § 1.1 and thus be exempt from licensing, that outlet can only remain exempt if all such animals are sold in face-to-face transactions in which the seller, buyer, and animal are physically present at the place of business or residence, which affords a measure of protective public oversight. Retail outlets selling any animal via remote or online transactions and not otherwise eligible for

de minimis

or other exemptions are subject to APHIS licensing and inspection. Moreover, outlets selling wild or exotic animals as defined in § 1.1 are not eligible for the retail pet store licensing exemption.

Several commenters asked that we define

pet animal

such that all bird species are protected as wild and exotic animals. A commenter stated that no explanation is given for why non-native, non-domesticated birds are considered exotic or wild, and another asked that we make a clearer distinction between wild birds and various domestic species. Another commenter who disagreed with the definition of

pet animal

stated that animals commonly kept on display or traded as pets are often indistinguishable from their wild counterparts—they are native species of other countries, and, in some cases, of the United States, and meet the definition of

exotic animal,

or

wild animal,

under the Act.

We note that many mammals that meet the definition of

pet animal,

such as hamsters, were once considered exotic and wild, and that parakeets and several other species of pet birds were similarly regarded. Accordingly, the fact that a bird species that was once wild or non-native is now sold as a pet should not preclude it from being considered a

pet animal.

While we proposed amending the definition of

pet animal

by adding “birds” and listing examples of birds commonly kept as pets, we emphasize that birds meeting the definition of

exotic animal

or

wild animal

as currently defined in § 1.1 will continue to be excluded from the definition of

pet animal

and would thus be subject to regulation. Any retail

outlets selling exotic or wild birds will require APHIS licensing and inspections. Furthermore, trade in native migratory wild birds is prohibited under the MBTA without prior authorization from the USFWS. Pet stores that are uncertain whether they sell pet birds or wild or exotic birds may contact APHIS during the implementation period after this rule becomes effective but before it is applied to regulated entities for guidance.

One commenter noted that a parrot is an exotic species and not a pet, and that genetically and behaviorally they cannot be considered to be a domesticated species.

A distinction exists between birds that have historically been used as pets, including some species of parrots, and birds that are wild or exotic animals as defined under those terms. On this point, we acknowledge that some types of parrots are not commonly kept as pets in family households in the United States and may fall under the definition of

exotic animal.

Accordingly, we are removing “parrots” from the illustrative list in the definition, although some parrots will still be defined as a

pet animal

if they meet the definition of

pet animal.

In short, while not all parrots are

pet animals,

some are.

A commenter stated that USDA has failed to provide an illustrative list of exotic birds, despite having historically done so for other species.

We do not intend to develop a list of exotic species of birds. However, we are drafting a list of birds commonly kept as pets that we intend to make available prior to the implementation period for this rule. We will offer guidance to new and current licensees as to the regulatory status of their bird species if they have questions during that time.

A commenter stated that raptors as classified by APHIS are either “wild animals” or “exotic animals” depending on the raptor's native origin and do not fall under the

pet animal

definition, noting there is no raptor pet trade. Similarly, a commenter asked that we revise the definition of

pet animal

to explicitly state that it does not include birds protected under the MBTA, whether of wild or captive origin.

We agree that raptors and other birds protected under the MBTA do not meet the definition of

pet animal.

However we do not find it necessary to revise the definition to exclude them because the absence of a raptor pet trade suggests that they are not being sold as pets. Furthermore, as we discuss in this document, falconry is not a use of birds that is covered under the AWA.

A commenter requested that APHIS specifically exclude racing pigeons from the definition of

pet animal.

We are making no change to the definition in response to the commenter's request, as racing pigeons do not meet the definition of

pet animal

for reasons previously articulated.

Exotic Animal

Exotic animal

in the current regulations is defined in part as an animal that is “native to a foreign country or of foreign origin or character, is not native to the United States, or was introduced from abroad.” While some birds that were introduced from abroad meet the definition of

pet animal,

as discussed above, exotic and wild animals are excluded from the definition of

pet animal.

In proposing to regulate birds not bred for use in research, we noted that such birds would be subject to all applicable regulations in 9 CFR parts 1 and 2. Accordingly, birds meeting the definition of

exotic animal

would be defined and regulated as such.

A commenter opined that this definition would consider as “exotic” certain species of birds such as parakeets, canaries, and zebra finches that were not initially native to the United States, but are now commonly kept as pets or used in research and no longer exotic in the normal sense of the word. The commenter encouraged APHIS to review the definition of

exotic animal

and exclude species of birds that were introduced into the United States long ago and are now commonly kept in captivity.

The commenter is correct in indicating that the definition of

exotic animal

applies to many animals that were introduced into the United States long ago and now kept in captivity or as pets. However, the types of birds that the commenter asked that we exclude from the definition of

exotic animal

are already excluded from that definition by virtue of their being included under the revised

pet animal

definition. The terms

pet animal

and

exotic animal

are thus used in a mutually exclusive sense within the regulations: A

pet animal

cannot be an

exotic animal

and vice versa. For this reason, we are making no changes to the definition of

exotic animal

as requested by the commenter. However, the commenter does raise a significant point. As with parakeets and cockatiels, other birds now considered to be exotic could, over time, be routinely sold as pets and meet the definition of

pet animal.

We will monitor the pet market in birds to identify exotic species that are being marketed as pet birds and after notice is provided, ensure that they are included under the proper definition.

Farm Animal; Poultry

Currently, § 1.1 defines a

farm animal

as “any domestic species of cattle, sheep, swine, goats, llamas, or horses, which are normally and have historically, been kept and raised on farms in the United States, and used or intended for use as food or fiber, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. This term also includes animals such as rabbits, mink, and chinchilla, when they are used solely for purposes of meat or fur, and animals such as horses and llamas when used solely as work and pack animals.”

Poultry

is not currently defined in the AWA regulations.

We proposed several changes to the definition of

farm animal

to ensure appropriate coverage for birds. Domestic species of poultry have historically been kept and raised on farms in the United States and used for food or fiber or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. Therefore, we proposed amending this definition to include such poultry. This would make the definition of

farm animal

consistent with the definition of

animal,

which lists poultry as a kind of farm animal that is exempt from coverage when used or intended for use as food or fiber, for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.

A commenter stated that in order to eliminate any misinterpretations we should revise the definition of

farm animal

to specifically identify chickens, as well as chicken breeder flocks and parent flocks used in broiler chicken production. The commenter recommended adding “or breeding of food-producing animals or their progenitors” as one of the listed uses that qualifies animals as

farm animals

in the definition.

We see no need to revise the proposed definition of

farm animal

to include chickens, as they are specifically listed under

poultry

and poultry are included under the definition of

farm animal.

Moreover, the use of broiler chickens as poultry used or intended for use as food already excludes them from coverage by virtue of their being excluded from the definition of

animal

in § 1.1.

We also proposed to revise

farm animal

to include animals when used solely for their feathers or skins. Our proposed addition of feathers accounted for morphological differences between

birds and other animals and is the avian equivalent of farm animals excluded from regulation when used solely for the purposes of fur. The addition of skins to the list reflects the common practice of using ostrich and other skins of birds for leathers. We also proposed adding ratites (

e.g.,

ostrich, rhea, and emu) to the illustrative list of animals that are included in this term when used solely for purposes of meat, fur, feathers, or skins.

In addition to these changes to the definition of

farm animal,

we proposed adding a separate definition of the term

poultry

to the AWA regulations to clarify what birds are considered poultry. This term is defined as any species of chickens, turkeys, swans, partridges, guinea fowl, and pea fowl; ducks, geese, pigeons, and doves; grouse, pheasants, and quail.

A commenter stated that poultry obtained from commercial production for research, teaching, and education fall outside the scope of this proposed rule and asked that we confirm that these poultry are not covered.

Such poultry would be considered bred for use in research and not subject to the regulations.

A commenter requested that we specifically clarify that racing pigeons meet the definition of

farm animal.

Pigeons used for food or feathers are poultry and would be considered farm animals not covered under the regulations. As discussed above, racing pigeons are not covered under the regulations because we consider them to be used in an agricultural context, and animals used in such a manner are excluded from regulation.

Another commenter asked that feral pigeons receive protection under the AWA regulations.

Feral pigeons by definition live in a wild state and are not covered under the AWA.

A commenter asked if farmed ostrich, rhea, and emu will be considered domestic poultry under the proposed regulations.

We do not consider ratites to be poultry, but under the definition of

animal

in § 1.1, farm animals used or intended for use as food or fiber, including farmed ratites, are excluded from AWA regulation.

Another commenter stated that gamefowl farms should be exempt from regulation as such birds cannot be housed or transported together in a social environment, noting that the spurs of roosters contain a bacteria that can cause a septic infection.

Provided that the farmed gamefowl are used or intended for use as food or feathers, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or feathers, the birds are excluded from coverage under the Act.

A commenter asked if poultry are exempt from regulation under the “food and fiber” provision if they are used as feeder animals for other species.

If poultry are being bred and used as food for other animals, they are exempt under this provision.

The commenter also asked if a group of grouse not meant for exhibition and being managed as a breeding colony would be exempt from regulation, as one of the exempted activities listed under

farm animal

(in which poultry will be included) is breeding.

If the grouse breeding colony and offspring are used or intended for use as food or feathers, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or feathers, the colony and offspring are exempt from regulation.

Intermediate Handler

In the regulations, an

intermediate handler

means any person, including a department, agency, or instrumentality of the United States or of any State or local government (other than a dealer, research facility, exhibitor, any person excluded from the definition of a dealer, research facility, or exhibitor, an operator of an auction sale, or a carrier), who is engaged in any business in which he receives custody of animals in connection with their transportation in commerce.

We proposed amending the definition of

intermediate handler

to include an exemption from AWA licensing for anyone transporting a migratory bird from the wild to a facility for rehabilitation and eventual release in the wild, or between rehabilitation facilities. Any person intending to transport or otherwise possess a migratory bird covered under the MBTA is currently required to obtain authorization from USFWS.

As we proposed the same amendment to

carrier,

the comments on this provision addressed both terms and thus are discussed above under the definition of

carrier.

Retail Pet Store

Currently, a

retail pet store

is defined as “a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase, and where only the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchillas, domesticated ferrets, domesticated farm-type animals, birds, and coldblooded species.”

The current definition also excludes establishments or persons conducting certain activities, meaning that these establishments do not meet the

retail pet store

definition and are therefore not exempt from licensing. These exclusions from the definition are as follows:

• Establishments or persons who deal in dogs used for hunting, security, or breeding purposes;

• Establishments or persons exhibiting, selling, or offering to exhibit or sell any wild or exotic or other nonpet species of warmblooded animals (except birds), such as skunks, raccoons, nonhuman primates, squirrels, ocelots, foxes, coyotes, etc.;

• Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes;

• Any establishment wholesaling any animals (except birds, rats, and mice); and

• Any establishment exhibiting pet animals in a room that is separate from or adjacent to the retail pet store, or in an outside area, or anywhere off the retail pet store premises.

We proposed to revise the definition of

retail pet store

by removing the parenthetical exceptions for birds from this list of exclusions. As we noted in the proposal, these parenthetical exceptions exist as a result of the historical exclusion of all birds from the definition of

animal

in §  1.1 of the regulations, but they are now inconsistent with the current definition of

animal

(under which birds not bred for use in research are included).

A substantial number of commenters requested that we revise the definition of

retail pet store

to ensure that all wild and exotic bird species receive protection. In support of this request, commenters stated that many bird species are wild and exotic and have not been domesticated like dogs and cats, and that pet shops that sell birds should be licensed.

We disagree with the commenters that pet stores should need to be licensed simply because they sell birds. As we noted above in our response to comments on our proposed changes to the

pet animal

definition, several species of birds have historically been used as household pets, including some species of parrots. While these birds were initially exotic when introduced

into the pet trade, they have become widely regarded as pet animals today, and we see no reason to consider them distinct from other pet animals. Conversely, we agree with the commenters that many species of birds are wild or exotic animals, and should not be considered pets. In this regard, we believe that our proposed definition of

retail pet store

actually provides additional oversight protection for such birds, as businesses selling any bird meeting the definition of

exotic animal

or

wild animal

10

as currently defined in § 1.1 would not be eligible for the

retail pet store

exemption and require licensing. The definition we proposed also excludes businesses that sell pets in transactions without the buyer being physically present to purchase or take custody of the animal. Currently unregulated businesses already selling wild or exotic birds, or birds as pets online without the buyer being physically present at sale, will need to become licensed or seek an exemption.

10

Moreover, nearly all wild birds in the United States are regulated by USFWS under the MBTA.

A commenter stated that because of their longevity, many parrots are abandoned by their owners and end up in rescue organizations and sanctuaries. The commenter asked that we revise the definition of

retail pet store

to explicitly include protections for long-lived exotic birds such as parrots that are being bred and sold at retail pet stores.

As the definition of

retail pet store

is intended for persons or businesses physically having pet animals for sale, revising the definition of

retail pet store

would not address the commenter's concern about abandoned parrots because they would no longer be in the retail pet store's possession. We note that birds at rescue organizations and sanctuaries that are exhibited or sold receive protection as they are covered under the AWA.

Weaned

Currently, § 1.1 defines

weaned

to mean that “an animal has become accustomed to take solid food and has so done, without nursing, for a period of at least 5 days.” We proposed to amend this definition to make it applicable to birds by adding that a bird is weaned if it has become accustomed to take food and has so done, without supplemental feeding from a parent or human caretaker. Signs that a bird or other animal has become accustomed to take food include the animal's ability to maintain a constant body weight during weaning.

A commenter stated that many falconers choose to train imprinted birds that they have raised themselves from a young age and that 5 days is a long time in the development of an imprint. The commenter noted that approximately a fifth of falconers in their organization have received young birds from breeders via commercial shipment that did not meet this 5-day test, and that a more reasonable definition for raptors would be eating unassisted for 2 days.

Practices associated with the sport of falconry, including the activity described by the commenter, are not among the uses covered under the AWA.

Another commenter disagreed with the definition of

weaned,

noting that some species feed their young well after they are able to feed and fend for themselves. The commenter added that “constant body weight” implies unchanging weight, which is unreasonable, and suggested that “stable” be used instead. Similarly, a commenter asked that APHIS amend the definition to remove the requirement that a bird maintains its weight during this period.

Although some species may continue to feed their young well after the young can feed and fend for themselves, we consider the offspring as being weaned. In the proposed definition, we indicated that maintaining a constant body weight is only included among other possible signs that a bird has become accustomed to take food during weaning. We agree with commenters that “weaned” does not necessarily mean that the bird has stopped growing or that its body weight is constant and are removing the last sentence referring to signs of weaning.

Other Applicable Terms and Definitions in § 1.1

Finally, persons affected by this rule would be subject to other terms and definitions in § 1.1 that we did not add to the regulations or revise, as applicable. Those terms, which include

commerce, transporting vehicle,

and

zoo,

are germane to many or all AWA-related activities.

Regulations for AWA Licensees and Registrants in 9 CFR Part 2

In addition to the amendments we proposed making to the regulations, all applicable licensing, registration, research, and inspection requirements currently in 9 CFR part 2 for licensees and registrants will apply to all persons newly regulated as a result of this rulemaking.

9 CFR Part 2, Subpart A: Licensing

Under § 2.1(a)(1) in subpart A, Licensing, persons who plan to maintain and use animals covered under the AWA regulations and who are not otherwise exempt from licensing are required to submit a license application provided by APHIS. Information requested by the application includes the address of each facility or facilities; maximum number of animals on hand at any one time during the period of licensure; types of animals maintained; and disclosure of any no contest plea or finding of violation of Federal, State, or local laws or regulations pertaining to animal cruelty or the transportation, ownership, neglect, or welfare of animals. The application must be submitted to APHIS-Animal Care, along with a $120 licensing fee as indicated in § 2.1(a)(2). Licenses are valid for 3 years. Persons seeking a license must also agree to a prelicensing inspection demonstrating that his or her location(s) and any animals, facilities, vehicles, equipment, or other locations used or intended for use in the business comply with the Act and the regulations and standards.

A commenter stated that license fees should be adjusted by the Secretary in accordance with § 2153 of the Act such that the value of the fees also supports bird inspection and rehabilitation processes.

Section 2153 states that “[T]he Secretary shall charge, assess, and cause to be collected reasonable fees for licenses issued. Such fees shall be adjusted on an equitable basis taking into consideration the type and nature of the operations to be licensed. . . .” These fees are not user fees and are not linked to recovering the cost of licensing, inspection, enforcement, or other APHIS services, but rather set at a level by APHIS to ensure that the fees are reasonable based on the classes of persons and businesses regulated. As to rehabilitation processes, we note that APHIS does not regulate animal rehabilitation activities.

We received numerous comments in which persons expressed concerns about the prelicensing inspection requirement. These comments, discussed below, include concerns about APHIS having the resources to adequately conduct inspections, as well as concerns about the inspection disrupting facility activities and violating privacy.

Some commenters questioned APHIS' ability to conduct equitable, comprehensive inspections and enforce the proposed regulations without additional human or financial resources.

We estimate in the revised economic analysis prepared for this final rule that there will be between 5,975 to 7,913 newly regulated entities maintaining

birds for covered uses. While APHIS will need to allocate resources to conducting prelicensing inspections for new licensees, we are confident based on our long experience with inspections that we can perform these activities effectively. Moreover, our adoption of a 1-year delayed implementation of the rule's provisions allows us to better manage prelicensing inspections. APHIS also uses a risk-based inspection system

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that uses several objective criteria, including but not limited to past compliance history, to determine the minimum inspection frequency at each licensed and registered facility. Facilities meeting the criteria for low-frequency intervals are subject to inspection once every year, or every 2-3 years, or in some cases only when we receive a complaint. Facilities determined to require high-frequency inspections are subject to inspection as often as every 3 months. Those in the middle are inspected about once per year. Registered research facilities are inspected at least once per year, as required by the AWA.

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See more about the risk-based inspection process at

https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/awa/ct_awa_risk_based_inspection_system.

Some commenters stated that the inspection of home-based businesses was an unconstitutional invasion of privacy, and that APHIS is not authorized to conduct such inspections.

While the U.S. Constitution affords rights to persons against unlawful search and seizure in their homes, § 2146 of the AWA explicitly authorizes inspections of licensees to determine compliance with the regulations. However, such inspections are limited to only those areas that impact the well-being of the animals, such as areas where food and medicine for the animals are stored. In other words, only the “business” part of a residence would be inspected for compliance with animal welfare standards, and APHIS inspectors are trained to observe and respect this distinction.

Some commenters raised biosecurity concerns about inspectors carrying pathogens into the facility. A few commenters stated that weekly PCR testing and vaccination requirements for COVID-19 should be considered for APHIS inspectors. Some stated that inspectors should be required to wear protective clothing to reduce the risk of disease transmission.

As is currently the practice, APHIS inspectors will take all biosecurity precautions sufficient to minimize introduction of human- or bird-based pathogens into facilities.

Several commenters stated that their birds are sensitive to strangers during breeding and nesting periods and that the presence of an inspector could cause birds to injure themselves or their nestlings. One such commenter stated that minor stresses, like strangers walking into the aviary and being seen or heard by the birds, can lead to the death of the female and offspring. Another commenter stated that psittaculture, the captive breeding and conservation of rare parrots, would be harmed by inspectors disrupting nesting and breeding activities. Some commenters called for all breeding facilities to be exempt from regulation, as disruption of breeding resulting from inspections could cause substantial costs to the breeder. On the other hand, some commenters stated that nesting and breeding concerns should not impede compliance inspections, and others noted that remote camera technology can allow inspectors to view birds without entering the nesting area.

We acknowledge commenter concerns regarding the presence of strangers during periods of breeding while affirming the importance of determining compliance through visual inspection. APHIS will not impose any requirements that will interfere with a species' natural behavior when it comes to nesting and breeding. APHIS will work with facilities to find approaches that accommodate these concerns while ensuring that inspections can occur at appropriate times and possibly with the assistance of technology, if appropriate. As we note above, inspections in such situations would not be random but would be based on the facility's record of compliance and other objective criteria we use to determine inspection frequency.

One commenter stated that, in addition to demonstrating compliance through a prelicensing inspection, license applicants should also have to demonstrate experience with the taxa they are caring for as measured by the number of years they have been working with the taxa, by working with a mentor or outside expert who is able to provide knowledge-based skills, or by an industry certification. Similarly, another commenter stated that some form of experience or knowledge-based skills should be expected, as no level of experience is required to acquire the USDA license.

We agree that an applicant having the ability to adequately care for their particular types of birds is a prerequisite for obtaining a license. However, APHIS has other ways of gauging this ability through the inspection without requiring a certain number of years of experience or an industry certification. During the prelicensing inspection, inspectors can see that a well-maintained facility indicates knowledge and application of professional standards on the part of the applicant. Inspectors also ask questions and engage in dialogue to gauge an applicant's ability to ensure adequate care for its animals.

A commenter asked if there will be a compliance period for newly regulated entities, and what will happen to birds of persons not in compliance.

APHIS will establish an implementation period of 180 days after date of publication for persons already licensed for mammals and using birds, and a period of 365 days for newly licensed persons using birds for regulated purposes. During these periods, APHIS will provide guidance to facilities to help them come into compliance with the regulations to ensure the birds' health and well-being. If inspectors discover conditions or records that are not in compliance with the regulations, APHIS-Animal Care establishes a deadline for correcting these items and provides it in the inspection report. If the noncompliance is a repeat noncompliance for which the original correction deadline has already passed, no additional time is given for corrections. Inspectors are required to reinspect any facilities where areas of noncompliance were found that have, or are likely to have, a serious impact on the well-being of the animals. In cases of unrelieved suffering, APHIS may confiscate the animals or arrange for their placement elsewhere.

Some commenters raised questions about the qualifications of APHIS inspectors and whether such inspectors would have the avian expertise needed to evaluate facilities housing birds. One stated that APHIS inspectors lack the skills necessary for assessing avian health and husbandry, such as knowledge of caging, flocking birds, and housing different bird species for compatibility. Some recommended that only veterinarians with avian expertise should conduct inspections of facilities, as they have the education and experience necessary to inspect birds. Another commenter suggested that we require veterinary oversight in lieu of inspections, adding that if a qualified veterinarian is not available, entities could use an avian-specific regulatory agency such as the Model Avicultural Program to assist in qualifying facilities.

All APHIS officials conducting compliance inspections will have the knowledge and resources needed to determine whether facilities are meeting the standards, with regular trainings to

inform them of emerging developments in aviculture. This can be accomplished without a specific prior background in avian health. Veterinary oversight and the Model Avicultural Program alone would provide some level of humane care, but are not sufficient surrogates for Federal inspection of the facilities. For example, as we mentioned in the proposed rule, the Program addressed some, but not all, of our proposed standards.

A commenter asked us to include a provision to have care for birds be a point of evaluation, and not just a category investigated on the basis of a complaint.

Inspections are not conducted only in response to complaints, although we do investigate complaints as they are received. APHIS requires a prelicensing inspection as a condition of licensing as well as subsequent compliance inspections of facilities based on level of risk, with more frequent and in-depth inspections at facilities posing a higher risk of animal welfare concerns.

AWA Licensing Requirements and Birds Covered Under the Migratory Bird Treaty Act

The MBTA (16 U.S.C. 703-712), passed by Congress in 1918, implements a series of treaties between the United States and Canada, Mexico, Japan, and Russia intended to protect and sustain populations of migratory birds. Under regulations developed and enforced by USFWS, the MBTA prohibits the take (including killing, capturing, selling, trading, and transport) of protected migratory bird species without prior authorization.

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With some exceptions,

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any activity involving the use, possession, or transport of a migratory bird, or the parts, nests, or eggs of such birds, requires a USFWS permit specific to the activity. Types of migratory bird permits and their provisions, listed in 50 CFR part 21, subpart C, include but are not limited to those intended for import or export, scientific collecting, falconry, raptor propagation, and rehabilitation.

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12

A list of migratory birds protected under the MBTA can be found at

https://ecfr.federalregister.gov/current/title-50/chapter-I/subchapter-B/part-10/subpart-B/section-10.13.

13

See 50 CFR 21.12, “General exceptions to permit requirements.” Exceptions address handling and transport of migratory birds by certain persons and institutions for the purpose of ensuring their health and safety.

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Regulations and permits specific to bald and golden eagles are located in 50 CFR part 22.

As we noted in the proposal, the 2002 amendments Congress made to the Act subjected birds not bred for use in research to regulation, and did so without distinguishing migratory birds from other birds. While migratory birds are currently covered under the MBTA and its regulations, the MBTA's primary objective is to sustain and protect native populations of such birds rather than to establish specific standards of care and humane treatment for birds in captivity. In other words, the MBTA was drafted with the intention of preventing poaching and overhunting of migratory birds and does not include specific animal welfare requirements.

In the proposal, we invited comments on ways that we may reduce regulatory burden on persons who could be potentially regulated by both APHIS and USFWS.

One commenter asked us to interpret all migratory birds as wild animals to be consistent with a “plain reading” interpretation of the definition of

wild animal

in 9 CFR 1.1.

We are taking no action in response to the commenter's request. The regulations define

wild animal

as “any animal which is now or historically has been found in the wild, or in the wild state, within the boundaries of the United States, its territories, or possessions,” whereas some migratory birds travel beyond those boundaries. Moreover, certain birds sold in the pet trade (

e.g.,

cockatiels) are migratory, and the commenter's suggestion would lead to confusion about whether such animals, when sold as pets, are or are not regulated.

The same commenter also requested that we interpret migratory birds to not qualify as “small,” so that migratory birds would not be excepted from licensing requirements under 9 CFR 2.1(a)(3)(iii). The commenter added that while the term “small” implies a meaning of size, in USDA practice it is used to indicate the need for specialized care in captivity.

Contextually, the word “small” is used in § 2.1(a)(3)(iii) to refer only to mammals. Birds are not mammals.

One commenter stated that while Federal authority over migratory birds remains under the MBTA, it does not replace or prohibit welfare-based regulations for migratory birds in captivity. The commenter added that the MBTA was specifically enacted to address hunting of migratory birds, not their care and conditions in captivity, and covers conduct that is not addressed by the AWA, just as the AWA covers conduct not covered by the MBTA. The commenter reasoned from this that there is no conflict in having both the USFWS and APHIS regulate the treatment of migratory birds. Another commenter stated that rather than drafting regulations with the intent to “minimize dual regulation” and potentially carve out migratory birds from AWA protections, USDA should maximize animal welfare. The commenter noted that the AWA and MBTA have distinct missions and that other Federal regulatory overlaps have not prevented USDA from promulgating robust standards for the care and use of animals—the commenter cited the interplay between the AWA and Endangered Species Act as one such example.

We agree with the commenters that both agencies may regulate migratory birds with minimal regulatory overlap, although we have no intention of exercising duplicative oversight of handlers and transporters. Unlike the MBTA, which addresses the protection of free and captive migratory birds, the focus of the AWA is on the standards of care, use, and welfare of regulated birds. As the commenter noted, many mammals currently regulated under the AWA are also regulated, for different purposes, under the Endangered Species Act and statutes of other Federal Agencies.

One commenter requested that APHIS communicate not only with USFWS but also the U.S. Geological Survey's (USGS) Bird Banding Laboratory and work with both agencies to reduce the amount of regulatory overlap. The commenter noted that the USGS issues bird banding permits and data needs to be submitted to USGS, State agencies, and the relevant Institutional Animal Care and Use Committee (IACUC) in fulfillment of each of those units' permits, which is a heavy administrative burden for bird banders and researchers. The commenter suggested that APHIS rely on USGS oversight for marking and tagging, and on USFWS oversight for waterfowl and endangered birds.

We appreciate the commenter's suggestion to work with USGS and USFWS in identifying birds. We will consider the suggestion and, if working with USGS allows us to continue meeting our requirements for individual identification while reducing burden on bird banders and researchers, we will consider developing a strategy to do so.

A commenter stated that it is unclear how birds that are part of a cooperative Endangered Species Act recovery and reintroduction program will be regulated under the proposed regulations.

Wild birds used strictly for the purpose described by the commenter are not regulated under the AWA.

A commenter recommended that USFWS continue to regulate migratory birds taken from or returned to the wild so that USFWS authorization would be

required to authorize the use of MBTA-protected birds that are wild-bred (

e.g.,

not captive-bred).

USFWS will continue to regulate such species as is currently the case, and APHIS will enforce AWA regulations as applicable.

AWA Licensing and Raptors

Raptors that are native to the United States or its territories are protected and regulated as migratory birds under the MBTA, with bald and golden eagles receiving additional protections under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c). The MBTA prohibits taking, possessing, purchasing, bartering, selling, or offering to purchase, barter, or sell raptors unless allowed by a permit issued by the USFWS.

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The MBTA regulations in 50 CFR part 21 contain specific permit provisions for raptors used for falconry, education, abatement, propagation, banding, scientific collection, and those in rehabilitation. Facilities and care requirements are listed in § 21.82(d), and include general provisions for shelter from environmental conditions, predators, and domestic animals, as well as requirements for watering, perches, tethering, and indoor and outdoor enclosures. As we have noted, the MBTA includes no specific animal welfare requirements.

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In addition to MBTA requirements, regulations under the Bald and Golden Eagle Protection Act (50 CFR part 22) place further restrictions on the uses of bald and golden eagles. Among these restrictions, no person may 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 or any golden eagle or the parts, nests, or eggs of these birds.

We received a large number of comments from persons concerned about the status of raptors under the proposed standards. The comments were consistent with those received during the listening sessions, in which many falconers and other interested persons stated that USFWS care, training, and handling standards for raptors meet or exceed those proposed by APHIS, and that many States already regulate falconry and raptor enterprises. Some commenters expressed uncertainty about which situations would require raptors to be subject to AWA regulations, and how the proposed standards would align with current standards of care and best practices. Many commenters expressed concerns that any new standards and regulations for captive raptor breeders would be burdensome and duplicative, noting that persons who enter captive-bred raptors in commerce, as well as those who rehabilitate and keep captive birds used in exhibition for education, are already highly regulated through both USFWS and State agencies. In addition, many noted a long history of successful self-regulation among falconers. Accordingly, most persons submitting comments specifically on this topic stated that no additional Federal regulations on them are necessary.

We are amending the definition of

animal

under § 1.1 to exclude falconry, for reasons discussed above under 9 CFR part 1: Definition of Terms. This amendment excludes falconry from coverage under the AWA. Other comments pertaining to the regulatory status of raptor use are addressed below.

One commenter noted that housing and care requirements for a USFWS special purpose permit come from the University of Minnesota Raptor Center guidelines, and that facilities housing raptors must meet or exceed these guidelines and be inspected to ensure compliance prior to the issuance of a permit. The commenter stated that these guidelines exceed those of the AWA and proposed regulations. Another commenter similarly stated that USFWS regulations already address the same standards for humane care listed in § 2143 of the Act for “handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and, when warranted, separation by species,” and another declared false our point in the proposal that the primary purpose of the MBTA is to sustain native populations of such birds rather than to establish specific standards of care and humane treatment. On the other hand, a commenter noted that neither the MBTA nor any other conservation-oriented law ensures humane care and treatment, and that regulation under State or other Federal laws does not disqualify birds from protection under the AWA.

We acknowledge that falconers, rehabilitators, and other raptor owners are regulated both by USFWS and at the State level, and that many such owners maintain high standards of care for their birds using industry guidelines and best practices. However, as the last commenter points out, neither the MBTA nor any other Federal law focuses on the protection of raptors and other migratory birds from lapses in animal welfare, meaning that applying AWA regulations to certain raptors would not duplicate requirements. We note that in many States, many species of mammals that are regulated under the Endangered Species Act are also subject to AWA regulations.

Some commenters stated that APHIS did not seek advice from raptor specialists before drafting the proposed rule, nor did the proposal appear to reflect input they provided during the listening sessions.

We typically conduct informal stakeholder outreach prior to drafting proposals, as well as formal outreach in the form of listening sessions and advance notices of public rulemakings. In drafting the proposal, we considered all input we received during the three virtual listening sessions that were held, during which we received numerous comments from raptor exhibitors, persons engaged in raptor conservation and research, and falconers.

A commenter stated that the Congressional statement of policy in § 2131 of the Act appears to impact only birds that are purchased in interstate or international commerce. The commenter added that, as most exhibitors of raptors have obtained their birds from the wild and not through interstate or international commerce, it seems reasonable that wild birds held for exhibition or breeding would be exempt from AWA regulations. Another commenter stated that raptors obtained from the wild are prohibited from use as a commercial commodity by USFWS regulations, and as such would not be regulated under this proposal because such birds do not touch or concern commerce.

The animals and activities referred to by the first commenter are either in interstate commerce or foreign commerce (not necessarily “obtained”).

Commerce

is defined in the AWA as trade, traffic, transportation, or other commerce,

16

so as it is defined, any animals obtained from the wild and then used for commerce (including exhibition, and breeding for sales) would not be exempt from AWA regulation.

16

The term

commerce

means trade, traffic, transportation, or other commerce—

(1) between a place in a State and any place outside of such State, or between points within the same State but through any place outside thereof, or within any territory, possession, or the District of Columbia;

(2) which affects trade, traffic, transportation, or other commerce described in paragraph (1).

Several commenters expressed the view that falconry should be regulated under the AWA and that the only exemption for birds with any connection to commerce are those that are specifically bred for use in research. On the other hand, a commenter representing a national raptor organization stated that the possession, propagation, and sale of raptors for falconry and falconry-related activities

should not be covered by the AWA or the regulations proposed by APHIS, as they are not pets under any generally accepted definition, including the definition in the AWA. The commenter also noted that raptors may not be sold as pets under the MBTA and existing USFWS regulations, and raptors are not known to be sold for experimental research. Accordingly, this commenter and others assumed that the AWA and proposed regulations would apply only to the exhibition of raptors, and propagation and sale for exhibition.

As we have noted above, we agree with commenters that raptors are not included under the definition of

pet animal.

While persons exhibiting raptors, or propagating and selling raptors for exhibition purposes, would be subject to AWA regulation unless otherwise exempt under amended § 2.1(a)(3), falconry is excluded under the AWA as it is not covered under the uses listed under the definition of

animal

in the Act: “[R]esearch, testing, experimentation, or exhibition purposes, or as a pet.”

Another commenter expressed the view that the captive breeding and sale of falconry raptors does not meet the definition of either a

dealer

or

exhibitor,

and that the closest analogy to a captive breeding operation is a

retail pet store

because a captive raptor breeder sells to licensed falconers at retail, without intermediaries, but that the captive-bred raptor is not sold for “research, teaching, testing, experimentation, exhibition, or for use as a pet.”

Persons under USFWS permit practicing falconry are not covered under the AWA and excluded from coverage under the regulations, and as such their inclusion under these terms does not apply, unless they are engaged in activities outside of falconry that would be covered under the AWA. Such persons would not be eligible for the

retail pet store

exemption, as raptors are not defined in the proposed regulations as pet animals.

Several commenters asked if raptor rehabilitation and rescue facilities are exempted under the

exhibitor

exemption.

In the proposed rule, we did not provide an exhibitor exemption for raptors, as the current exhibitor exemption in § 2.1(a)(3)(vii) applies primarily to pet animals. In the comments we received on the proposed rule, several persons asked that we provide an exhibitor exemption for raptors, such as those displayed in rehabilitation facilities or for educational purposes. Conversely, other commenters stated that no exhibitor exemptions should exist for raptors because of concerns about animal welfare as well as safety risks to the public.

We determined, based on commenter input and our experience from regulating exhibitors, that applying the existing

de minimis

exemption of eight or fewer animals to raptors would pose a heightened level of risk to both raptors and persons participating in or watching the exhibition, clearly higher than the exhibition of small mammals. On the other hand, raptor rehabilitators and educators noted that raptors are already regulated by other Federal and State agencies, particularly USFWS, and underscored the value of their work to educate the public about conservation and species preservation. These comments suggest the need for some

de minimis

threshold for exhibition of raptors, if at a lower number than eight. Considering these factors, and in light of the comments that we received, we have determined that four or fewer raptors would be a reasonable

de minimis

exhibition threshold that ensures animal welfare by requiring licensing and inspection at facilities with many raptors while also minimizing burden on smaller facilities. This is consistent with previously articulated APHIS policy: APHIS considers entities that possess four or fewer animals that would otherwise be subject to regulation to provide sufficient care and oversight to their animals so as to eliminate the need for our regulatory oversight. This is particularly true of raptor exhibitors, who, as commenters noted, must already possess a permit from USFWS that provides a degree of Federal oversight. We are therefore amending the proposal by adding a raptor exhibition exemption to § 2.1(a)(3). We intend to monitor this exemption and its implications on animal welfare, public safety, and business needs, and will make adjustments if needed.

We emphasize, lastly, that raptors at rehabilitation and rescue facilities that are not being exhibited are not covered under the regulations, provided that they are maintained separately from the exhibited birds. Without separation, the birds undergoing rehabilitation could affect the health or well-being of the exhibited birds. This is consistent with our current policy for determining the status of mammals at facilities which only exhibit some of their animals.

A commenter stated that the requirement for “a program of preventative veterinary healthcare for regulated birds, with annual physical exams for each bird and health records maintained for each regulated bird [to be made] available for review by APHIS” constituted excessive oversight, adding that, in addition to the cost, an annual physical exam can cause disruption and harm in a breeding facility.

We note that, to ensure adequate animal welfare, the current regulations in § 2.40 require licensed dealers and exhibitors to have an attending veterinarian under a formal arrangement, as well as a program of veterinary care. Veterinary oversight requirements are addressed in detail under Standards for Birds in 9 CFR part 3. While persons maintaining covered birds are required to comply with the veterinary requirement, birds are not required to undergo a hands-on physical examination.

A commenter stated that any new regulations or permits imposed on breeders should be issued to each individual that has qualified for a USFWS permit and should not be issued per facility, as it will create an unnecessary burden to report individually to some agencies and together for another in the case where two permitted propagators share a facility. The commenter asked for an exclusion for USFWS raptor propagation permit-holders, or if they are to be included, to have the exclusion limit for licensing set at $250,000 net income after expenses, or to exclude anyone for whom breeding raptors is not their primary source of income.

USFWS propagation permittees that do not exhibit their birds are not defined as

exhibitors

under § 2132(h) of the AWA and therefore are not subject to its provisions or to these regulations, which have been issued pursuant to the AWA.

Several persons commented that birds exhibited for conservation education and already permitted by USFWS should fall under the standards of that agency only.

As we have noted, USFWS does not regulate for animal welfare.

A commenter asked APHIS to provide supplemental documentation that explains the standards as they apply to groups of similar birds, noting that raptors have requirements for perch shapes, food types, and social interactions that differ from those of other birds.

We intend to engage in dialogue with current and new licensees to help them attain and maintain compliance with the standards, both during and after the implementation period.

Several commenters stated that falconers and caretakers who work closely with raptors are more experienced and qualified than an attending veterinarian to make housing and equipment decisions regarding their

birds, with one commenter noting that the unique housing and equipment needs of falconry birds are not areas commonly addressed in general veterinary school curricula. On this point, several commenters stated that the level of expertise a veterinarian might possess in these areas would not match that of staff who have spent decades caring for raptors. Another commenter stated that the proposal's excessive reliance upon veterinarian oversight of simple procedures is unnecessary. One commenter stated that most veterinarians do not possess the skills necessary to adequately cope (trim and shape) the beaks of different varieties of raptors. Many commenters noted that falconers serve an apprenticeship and undergo extensive training in caring for and handling birds as prerequisites to acquiring a falconry license, and one such commenter added that a network of falconer-veterinarians are embedded within the U.S. falconry community.

While we acknowledge that raptor caretakers have a great deal of experience in husbandry and caring for their birds, we emphasize that only a licensed veterinarian in good standing has the training and medical knowledge to diagnose and treat many conditions, which is why persons using raptors for purposes covered under the AWA require licensing that includes a program of veterinary care and regular visits by an attending veterinarian.

A few commenters stated that pest bird abatement companies should be regulated. One such commenter noted that sport falconry is an entirely different activity than commercial falconry bird abatement, with abatement businesses sometimes employing dozens of birds for compensated work. The commenter expressed the view that commercial abatement practitioners should pay the cost of inspections according to the number of birds used in commercial activities and the practitioner's level of annual compensation. On the other hand, a commenter stated that abatement companies should be excluded from AWA coverage because the use of falconry for pest bird abatement provides a nonlethal approach to abatement without the need to poison or shoot nuisance birds at airfields and other locations for public safety.

Falconry activities, including pest bird abatement, are not included under the AWA and therefore are excluded from coverage.

A commenter emphasized the importance of USDA officials who inspect Native American eagle aviaries to meet with the leaders of those facilities and learn the Tribal perspective.

In accordance with Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments” we informed Tribal leaders of the proposal, and held a Tribal consultation on November 4, 2021. No Tribal leaders raised significant questions or concerns during the consultation, and we received no subsequent comments from Tribes during the comment period for the proposed rule. We do, however, acknowledge and respect the importance of eagles and other raptors to many Tribes and will continue to actively engage Tribal nations and communities on this rule.

As we noted under Definitions, we are revising the definitions of

carrier

and

intermediate handler

in § 1.1 to include an exemption from AWA registration for anyone transporting a migratory bird covered under the MBTA from the wild to a facility for rehabilitation and eventual release in the wild, or between rehabilitation facilities.

A commenter stated that it is unclear if birds undergoing rehabilitation for release back into the wild will be regulated under this proposal.

Migratory birds undergoing rehabilitation for intended release back into the wild would be subject to AWA regulations if they are exhibited, bearing in mind that raptors are eligible for a

de minimis

exemption if four or fewer are exhibited. If birds are no longer able to survive in the wild and must remain captive, they would be covered under the AWA only if used for exhibition or another covered purpose.

Licensing Exemptions—§ 2.1(a)(3)

The current regulations in § 2.1(a)(3) include licensing exemptions based on criteria such as types of animals and how they are used, whether and how they are sold, and size of business based on gross income, or the number of covered animals bred or exhibited.

We received numerous comments regarding exemption criteria and which species and uses of birds should be exempted from licensing. Many commenters stated there should be no

de minimis

exemption based on revenue, the number of animals, or activity (such as pigeon racing or bird fancier shows). One commenter stated that we should require licensing and inspections in response to any complaint for facilities that house birds, regardless of the number of birds.

APHIS is authorized under § 2132 of the Act to exempt from regulation certain uses of animals, including animals used in agriculture and birds bred for use in research. Under § 2133 of the Act, which states, “a dealer or exhibitor shall not be required to obtain a license as a dealer or exhibitor under this chapter if the size of the business is determined by the Secretary to be

de minimis,”

APHIS is also authorized to exempt from licensing and inspection small businesses that pose a minimal risk of animal welfare problems. We have determined that certain facilities that keep birds are

de minimis

in size, and/or present a minimal risk of animal welfare problems, and we consider exempting them from regulation to be appropriate in light of our statutory authority. By exempting

de minimis

businesses, we are able to focus inspection and enforcement efforts on those businesses at greater risk of animal welfare concerns.

Many commenters stated that there should be no species-based exemptions from licensing.

We have not included in this rule exemptions from licensing or exclusion from regulation based on species.

A commenter stated that APHIS should consider additional exemptions for entities who are already heavily monitored, including non-profits, bird sanctuaries, and zoos, as many of these facilities are subject to other Federal and State requirements and additional administrative requirements are unlikely to improve conditions for the animals in their care. The commenter suggested that where such entities are required to undergo State inspections and receive certification, perhaps APHIS could accept submission of those inspection reports and certificates in place of another inspection or form. One commenter stated that facilities formally accredited by the Association of Zoos and Aquariums should be exempt from the proposed regulations, and another commenter requested that we include a licensing exemption for any bird breeder, bird dealer, or bird exhibitor certified under an inspection and certification program available to all within the bird industry.

We are making no changes in response to these commenters. We acknowledge that facilities with birds may already be subject to other Federal and State requirements and industry-based standards. While they are beneficial, as we noted in the proposed rule, industry certification programs and existing government requirements are not necessarily equivalent to the proposed standards, nor are they structured to be consistent with the Act and its animal welfare requirements.

Several commenters stated that rescues and shelters should never be exempt from APHIS inspections or licensing, and many cited concerns

about animal welfare, overcrowding, and poor sanitation. Other commenters noted that some entities calling themselves rescues are actually commercial operators breeding and selling birds with little regard for animal welfare. On the other hand, some commenters asked that we exempt all rescues and shelters from licensing requirements, noting that such facilities are not run for profit and that regulations will cut into their financial capability to assist birds in need. Another commenter stated that rescues that do not exhibit should be exempt from licensing.

If bird shelters or rescues act as dealers or exhibitors, they are covered under the AWA and may require licensing unless they meet one or more of the exemptions set forth in § 2.1(a)(3). Rescues and shelters that do not exhibit or engage in any other covered activity are exempt from licensing.

Some commenters asked APHIS to consider an exemption for organizations and persons that breed birds strictly for conservation and restoration purposes with the intent of releasing birds produced into the wild, retaining into the captive flock for genetic purposes, or enhancing the captive population to maintain a restoration program.

Conservation and restoration entities that release birds into the wild or maintain bird restoration programs will not be required to be licensed, provided that they do not act as dealers or exhibitors. If they do act in such a manner, they may still be exempt from licensing if they meet one or more of the exemptions from licensing set forth in the regulations.

A commenter requested that we exclude holders of a USFWS “Special Purpose-Abatement Using Raptors Permit” from regulation, adding that without a specific exemption, it could cause confusion for inspectors when they inspect someone that holds multiple migratory bird permits.

Pest abatement falconry activities are not covered under AWA regulations. APHIS inspectors only inspect for compliance with AWA regulations, not USFWS regulations or those of any other agency. For this reason, we are making no changes in response to the commenter's request as we see no need to include a specific exclusion.

The same commenter also stated that the exemption limit for raptor exhibitors is too low, noting that for educational programs with raptors that free fly, it is necessary to rotate through different teams or have understudies when some birds are unavailable. The commenter asked us to exclude from AWA regulations USFWS Special Purpose Possession-Live Migratory Birds for Educational Use permit-holders, or if they will be regulated, to have the exclusion limit set at 25 birds to minimize burden on educators. Additionally, the commenter asked that we exclude from regulation falconry schools holding USFWS Special Purpose-Falconry Education permits, as the sport of falconry is not included within the AWA.

The commenter erroneously read the proposed rule to include provisions for exempting raptor exhibitors from licensing. As discussed previously, the proposed rule contained no such provisions; however, several commenters asked us to add a

de minimis

threshold. Based on those comments, we have added such an exemption, but consider the 25-raptor threshold proposed by the commenter too high in light of possible health and welfare considerations. Persons using more than four raptors for exhibition will be required to apply to APHIS for a license regardless of whether all the raptors are being exhibited at one time. Persons under USFWS permit using raptors for falconry are not covered under the AWA and its regulations.

One commenter encouraged APHIS to consider a

de minimis

exception that would permit research facilities registered under the AWA to engage in a small number of transactions involving birds that fall outside of the

bred for use in research

definition without having to become licensed as a dealer.

If the research facility adopts a business model that exempts them from licensing by only conducting face-to-face transactions and meeting the other elements of the definition of “retail pet store,” the research facility could sell birds and not require licensing as a dealer.

Currently exempted in § 2.1(a)(3)(i) are retail pet stores as the term is defined in § 1.1. A

retail pet store

is a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase, and where only the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchillas, domesticated ferrets, domesticated farm-type animals, birds, and coldblooded species. The exemption allows persons to sell any number of animals as pets, at retail, and without a license provided that all animals are sold at the business or residence with the buyer physically present to see the animal before purchase.

We proposed to revise the definition of

retail pet store

by making it consistent with the definition of

animal,

which includes birds not bred for use in research.

A commenter stated that the proposed definition of a

retail pet store

could include a bird rescue because many are maintained in a residence at which the bird is present, the adopters come and pick up the bird, and pay an adoption fee. The commenter added that because parrot and other bird rescues are typically 501(c)(3) nonprofits, their tax status could be adversely affected by being regulated. The commenter proposed including language in the standards specifically for rescue and sanctuaries.

We agree that a rescue operating as the commenter describes can be defined as a

retail pet store

and exempt from regulation, provided that each adoptee is physically present at the rescue to pay an adoption fee if applicable and pick up the bird. We do not see a need to include language in the rule specific to rescues and sanctuaries on this topic. We consider private rescues and shelters that perform any of the activities listed in the definition of

dealer,

including transporting or offering animals for compensation, to be dealers. We consider acts of compensation to include any remuneration for the animal, regardless of whether it is for profit or not for profit. Remuneration includes, but is not limited to, sales, adoption fees, and donations.

A substantial number of commenters stated that birds have not been long domesticated like dogs and cats and thus pose a greater welfare risk, and for this reason asked that we require the licensing of retail pet stores that sell birds.

We disagree that birds pose a greater welfare risk than other animals sold in retail pet stores merely because they may not have been domesticated as long.

One such commenter cited low standards of care at retail outlets, adding that not requiring licensure of pet stores allows them to overfill cage space with more birds than can be properly housed.

We assume the commenter is referring to the current exemption for retail pet stores, which are defined in part as “a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase.” The exemption, as

currently applied to dogs, cats, and other animals, does not require that the buyer observe anything other than the animal, although a concerned buyer could always request to view additional information from the seller as to the animal's housing and care. Retail outlets that sell any pets online or in any situation where the buyer, seller, or animal is not physically present would require licensing and regular inspections. It is APHIS' long-standing contention that the AWA exempted retail pet stores from regulation because the buyer may observe the health and welfare of an animal prior to purchase, and this observation constitutes sufficient monitoring of the health and welfare of the animal. In this regard, we note that overcrowding can cause visible stress in birds, affecting their physical appearance and behavior.

Another commenter recommended that licensing and inspection be required for retail pet stores that sell any wild-caught birds, or any captive-bred birds other than doves and pigeons, finches, canaries, lovebirds, cockatiels, or budgerigars.

Businesses selling wild-caught animals are excluded from the

retail pet store

definition and are thus subject to regulation. In addition, wild-caught birds likely fall under authority of the MBTA and are regulated by USFWS. Captive-bred birds may be pet animals if they meet that definition as listed in § 1.1. The list of pet birds we provided in that proposed definition is intended to be for illustrative purposes and is not exhaustive.

A commenter stated that the

retail pet store

exemption should not remain in place for long-lived bird species such as parrots. The commenter added that pet owners should obtain a license in order to purchase such long-lived exotic avian species.

The length of a bird's life span is not germane to determining whether or not it is intended as a pet animal, and the act of owning a pet is not subject to licensing under the AWA.

A commenter asked if meeting people at a neutral meeting point to conduct a sale, such as a parking lot, would fulfill what is required for the

retail pet store

exemption.

As long as the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase, and the sale is not otherwise covered under the regulations, a meeting point could be eligible for the

retail pet store

exemption.

Under § 2.1(a)(3)(ii), an income threshold exemption applies to any person who sells or negotiates the sale or purchase of any animal except wild or exotic animals, dogs, or cats, and who derives no more than $500 gross income from the sale of such animals during any calendar year.

A commenter suggested that for the purposes of the $500 exemption we include all migratory birds under the definition of

wild animal,

as well as populations of free parrots living in the southern United States.

We are taking no action in response to the commenter. The sale of migratory birds is an activity covered under the authority of the USFWS and a migratory bird cannot be sold without a permit from that agency. Depending on the species, free parrots living in the United States are subject to some State and Federal regulations, but we do not see the relevance of an income exemption to populations of parrots living in the wild.

A few commenters stated that we underestimated the costs for attending veterinarians to develop and monitor a veterinary care program and it would be difficult for small facilities to qualify for the $500

de minimis

exemption. The commenters recommended that we increase the

de minimis

amount to reflect the realistic cost for veterinarians to conduct site visits.

The income

de minimis

threshold is tied to the income derived from the sale of animals and not to expenditures such as veterinary costs.

Several other commenters recognized that the $500 gross income exemption was linked to income and not facility costs. Most noted that few, if any, aviculturalists would be eligible for this licensing exemption, as nearly all earn more than $500 and even a single pair of birds could cause a hobbyist to go over that amount from selling the offspring. A few commenters stated that the gross income exemption threshold should be $30,000, and others suggested thresholds between $1,000 and $20,000. One commenter stated that a dollar value for

de minimis

exemptions is “nonsensical” as some birds have very little value while others have a very high value. One commenter stated that the threshold should be increased to $250,000 net profit if raptor propagators are to be subjected to APHIS regulations, or that only commercial breeders who rely on breeding as their primary income should be covered. Another commenter representing raptor owners stated that a

de minimis

exemption threshold based on the number, rather than the value, of birds sold for exhibition is more meaningful and aligned with the AWA, but that otherwise a monetary threshold of $50,000 for birds sold for exhibition should be established.

We acknowledge that many, if not most, facilities selling birds earn more than $500 in annual gross income for that activity and would not be eligible for the exemption. We considered other ways of exempting businesses that pose a

de minimis,

or minimal, risk to animal welfare based on the size of the business. Drawing on our experience with small facilities and on comments we received from persons supporting a sales threshold, we determined that a threshold based on numbers of birds sold annually would be most equitable with respect to balancing regulatory burden with animal welfare.

As explained below, we replaced number of breeding females with number of birds sold annually as the threshold for determining a

de minimis

exemption from licensing. Generally, any person is exempt from the licensing requirements who sells 200 or fewer pet birds of 250 grams or less annually, and/or sells 8 or fewer pet birds of more than 250 grams annually. This change will exempt from inspection and licensing many more facilities as a result. We believe that the revised

de minimis

exemption from licensing will apply to most small breeders, while very few businesses selling birds would qualify for the $500 dollar or less gross income exemption in § 2.1(a)(3)(ii).

Under § 2.1(a)(3)(iii), a licensing exemption is also provided for any person who maintains four or fewer breeding females of pet animals, small exotic or wild animals, and/or domesticated farm type animals and sells only the offspring of these animals, which were born and raised on his or her premises, for pets or exhibition, and is not otherwise required to obtain a license. We proposed for this exemption threshold to also apply to AWA-covered birds

Several commenters expressed support for an exemption threshold of four or fewer breeding female birds. A comment co-signed by several animal welfare advocacy organizations stated that, as both dogs and birds are bred for sale, and as the AWA is focused on ensuring humane treatment, no variation in licensing thresholds between the species in terms of numbers of animals is supportable. The commenter added that a species' physical size or commercial profitability is no more adequate justification for altering the

de minimis

rule than it would be for altering the rule for any other covered species, and that focusing on financial rather than welfare

considerations runs counter to the AWA.

On the other hand, numerous commenters disagreed with the proposed licensing

de minimis

exemption of persons maintaining four or fewer breeding female birds on grounds that the threshold is too small.

Several commenters proposed a licensing

de minimis

threshold higher than four. One commenter stated that APHIS has not considered the vast number and variety of species of birds in captivity, adding that keeping four zebra finches is very different than keeping four macaws. A few commenters stated that four or fewer breeding females is far too low to allow for the maintenance of genetic diversity among many species. Some commenters asked why the

de minimis

threshold for four breeding female mammals is applied arbitrarily to an entirely different class of animals, with no consideration of the different breeding characteristics between and within the two classes. A few commenters noted that many species of birds are sexually dimorphic only in size, and only a person with advanced knowledge of a species or laboratory tests can determine if an individual is female or male. Several commenters noted that most bird breeders maintain more than four breeding females and sell the offspring, and another commenter stated that a more detailed analysis by avicultural organizations suggests that the subset of persons who would be exempt under the proposed licensing threshold is smaller than APHIS anticipates. Several commenters asked for more explanation of circumstances where a female bird would be considered a “breeding female” for the purposes of the threshold—for instance, whether a “retired” breeding female would be counted.

As these and many other commenters noted, the breeding habits and number of offspring produced by different species of birds, or birds within a species, can range dramatically, much more so than mammals such as dogs, cats, and other AWA-covered mammals widely kept in the United States. As the current

de minimis

thresholds for breeding females were originally developed to address these animals, the comments we have received on this topic have caused us to reevaluate the current

de minimis

threshold measured by number of breeding female animals maintained as applied to birds. As we noted above, several commenters requested that a new

de minimis

exemption for bird breeders be established that is based on the number of birds sold instead of the number of breeding females maintained, with some commenters further recommending exemptions contingent on weight of birds sold.

For these reasons, in § 2.1(a)(3) we would establish a new

de minimis

exemption specific to birds, in which any person is exempt from the licensing requirements who sells 200 or fewer pet birds of 250 grams or less annually, and/or sells 8 or fewer pet birds of more than 250 grams annually, determined by average adult weight of the species, which were born and raised on his or her premises, for pets or exhibition, and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively sells more than 200 pet birds 250 grams or less annually, and/or sells more than 8 pet birds more than 250 grams annually, regardless of ownership. Pet birds at or below 250 grams typically include cockatiels, budgies, finches, lovebirds, and parakeets, while pet birds over 250 grams may include cockatoos, macaws, and African gray parrots.

We chose the above annual sales thresholds for pet birds after reviewing many comments that proposed licensing exemption thresholds ranging from dozens of birds to thousands. We also sought a threshold that does not unduly burden small pet bird businesses while ensuring animal welfare for AWA-covered birds at these facilities. In deciding upon 200 or fewer birds 250 grams or less as the exemption threshold, we noted that smaller birds reproduce more quickly, can be bred in colonies, and have fewer behavioral welfare concerns. While no commenters specifically suggested 250 grams as the cutoff limit for the 200 sales threshold, some suggested weights between 100 and 200 grams. We consider 250 or more grams (using adult average weight) to generally distinguish larger pet birds such as cockatoos, macaws, and African grey parrots from canaries, budgies, and other small birds. We also consider eight or fewer large pet birds sold annually to constitute a small facility that poses a

de minimis,

or minimal, risk to animal welfare and would therefore be exempt from licensing.

Some commenters stated that the thresholds for exemption are arbitrary and inappropriate for raptor breeding and education. One commenter representing raptor owners stated that the

de minimis

thresholds for licensing should be raised for birds of prey because their possession and sale are already regulated and subject to animal welfare standards enforced by each State under USFWS guidelines, they cannot be sold as pets, and falconers and other raptor owners have a strong motivation to ensure the welfare of their birds. The commenter requested that a

de minimis

exemption for raptor breeders be established based on the number of birds the breeder sells or transfers for exhibition purposes and recommended that this number be 24, based on an estimate of the average number of young produced by 12 breeding pairs of raptors. Another stated that the licensing threshold on raptor breeding pairs should be no lower than 25 to ensure genetic diversity for wild raptors.

We note that in the proposed rule, we did not apply the breeding exemption in § 2.1(a)(3)(iii) to raptors, as it only applies to persons breeding and selling pet animals (which includes pet birds), small exotic or wild mammals, or domesticated farm-type animals for pets or for exhibition. As the sales per year exemption we have included in this final rule only applies to pet birds, the exemption does not apply to persons breeding and selling raptors. We have, however, excluded falconry from the definition of

animal

and

exhibitor

in the AWA regulations.

A commenter requested exempted status for any bird dealer who does not place birds into wholesale trade in interstate commerce.

Persons dealing in birds are covered under the AWA regulations. The commenter did not provide a rationale for exempting wholesale trade.

A commenter recommended that the regulations should state that the only MBTA species that may be bred are those authorized under 50 CFR part 21 and that there be no

de minimis

exemption for MBTA-protected species.

The AWA covers animal welfare for certain animals, including birds not bred for use in research. Its provisions are not contingent on what is covered and not covered under the MBTA. The MBTA does not include specific protections for animal welfare. That being said, APHIS has no statutory authority to prescribe what birds may or may not be bred.

An exemption is also provided in § 2.1(a)(3)(vi) for any person who buys, sells, transports, or negotiates the sale, purchase, or transportation of any animals used only for the purposes of food or fiber (including fur). To accommodate birds under this exemption, we proposed to add “feathers” to the list of purposes for maintaining animals.

A commenter asked that we include “skin” in the list.

As we added “skins” as one of the products under

farm animal,

we agree with the commenter and will add

“skin” to the list of uses for which farmed animals may be exempted.

One commenter recommended a plain English reading of the exemption, where only birds of the family

Anatidae

may be included for food and fiber purposes. Another commenter stated that the propagation of game birds should fall under the “agriculture exemption.”

We are making no change in response to these comments. With regard to the first commenter, we note that commercial poultry bred for food or fiber purposes include birds not in the family

Anatidae.

For this reason, we believe it is more appropriate to add the term “poultry” to the definition of

farm animal,

and add a separate definition of

poultry

that lists doves, pheasants, grouse, and quail as among the birds included. The term

poultry

also includes ducks, geese, and swans in the family

Anatidae.

With regard to the second commenter, under the definition of

animal,

poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber would be exempted from licensing. Propagation of gamebirds would fall under this agricultural exemption.

In addition, § 2.1(a)(3) includes an exemption for any person who maintains a total of eight or fewer pet animals as defined in § 1.1, small exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils), and/or domesticated farm-type animals (such as cows, goats, pigs, sheep, llamas, and alpacas) for exhibition, and is not otherwise required to obtain a license. We proposed for this exemption to apply to pet birds also, and note that under our proposed revision to the term

pet animal,

we added that the term also includes but is not limited to such birds as parrots, canaries, cockatiels, lovebirds, and budgerigar parakeets.

Some commenters requested that persons using poultry for exhibition be exempted from the licensing requirement.

The current definition of

exhibitor

excludes persons exhibiting animals at shows, fairs, and other events intended to advance agricultural arts and sciences. In addition, we proposed to amend

exhibitor

to also exclude bird fancier shows, as we note above that these are rooted historically in the advancement of agricultural arts and sciences. Within these contexts, we consider poultry exhibition to be an activity exempted from the licensing requirement.

Paragraph § 2.1(b)(1) states that licenses are issued to specific persons, and are issued for specific activities, types and numbers of animals, and approved sites. As each license specifies the numbers and types of animals that a licensee can maintain, under paragraph (b)(2)(ii) a licensee is required to obtain a new license before acquiring or using any covered animal beyond those types or numbers of animals specifically authorized under the existing license.

A commenter expressed concern with the requirement for obtaining a new license before acquiring additional types or numbers of animals. The commenter noted that zoos and other members of its organization frequently accept confiscated birds at the request of Federal or State law enforcement agencies, with little control over the species or numbers of birds in need of protection, and asked that we modify the license requirement to allow for more flexibility for such situations.

If acquiring confiscated birds is a possibility, facilities completing a new license application before acquiring additional types or numbers of animals are encouraged to put the highest total number of animals they expect to have. We also note that licenses only require specific authorization for type of animal if the animal is subject to subparts D or F of 9 CFR part 3 and in a group listed in § 2.1(b)(2)(ii). As this list does not include birds, licensees acquiring new species of birds would not be required to obtain a new license as a result of their acquisition of such birds unless the licensee exceeds their authorized number of overall animals.

A few commenters recommended that licensing options should be available for both individuals and organizations, explaining that organizations can ensure, execute and enforce standards of care (presumably for each of its members). One commenter opposed to the rule noted that an organization-wide license limits the number of licenses needed when there are multiple rehabilitation caregivers within a given agency.

The agency considers and issues licenses to a

person.

Under § 1.1,

person

means any individual, partnership, firm, joint stock company, corporation, association, trust, estate, or other legal entity.

APHIS is aware that a number of currently licensed facilities, in addition to maintaining mammals of various types, also maintain birds that might be newly covered under these changes to the regulations. These birds are not currently listed on the license. However, in order to minimize redundant administrative burden on these facilities, we would not require that they apply for a new license only for the purpose of meeting the effective date of these regulations. Therefore, we proposed to add a sentence to § 2.1(b)(2)(ii) stating that a licensee in possession of birds on the effective date of the rule may continue to operate under that license until its scheduled expiration date. APHIS encourages such persons to apply for a new license at least 90 days before expiration of the current one. As we note above, licenses are valid for 3 years.

A commenter contrasted this license deferment with current § 2.30(c) (Notification of Change), in which research facilities are expected to provide APHIS with notification of any change in operations, including a change in activities or location stemming from birds in their possession, within 10 days from the date of such change. The commenter asked APHIS to establish an effective date for the final rule that affords research institutions at least 6 months to analyze the final rule's impact on their operations, and stated that APHIS should provide research facilities with at least 6 months to notify it of changes resulting from compliance with the final rule. The commenter added that APHIS should ensure that the rule's effective date provides institutions with at least 6 months before Annual Reports are due to conduct their analyses.

We agree with the commenter's request to afford additional time for research facilities to understand and comply with the regulation. An implementation period will be provided for all facilities conducting covered activities to ensure compliance with these standards and we intend to provide facilities during this time with guidance to help them comply with the regulations. For new licensees and registrants, the rule will be applied 365 days after the date of publication. For current AWA licensees and registrants, the rule will be applied 180 days after date of publication. To the commenter's question about research facilities needing to report changes stemming from this rule within 10 days from the date of that change, this requirement will not be enforced until after the end of the implementation period. Insofar as annual reports cover activities beyond those solely involving birds, we cannot grant the commenters request for a 6-month delay in filing Annual Reports, which are due by December 1 each year and report on activities for the previous Federal fiscal year. However, we will not require that information concerning birds be included in the annual report

until the one prepared for fiscal year 2024.

9 CFR Part 2, Subpart B: Registration

Under subpart B, Registration, carriers and intermediate handlers newly regulated under this proposal would not require a license to transport birds, but would be required to register by completing and filing a form provided by APHIS. Registrations, unlike licenses, do not have an expiration date.

One commenter asked whether wildlife rehabilitators who are not conducting educational or research activities need to register with APHIS.

Wildlife rehabilitators not conducting covered activities would not be subject to AWA regulations.

Requirements and Procedures—§ 2.25

Section 2.25 provides in part that each carrier and intermediate handler is required to register with the Secretary by completing a form furnished, upon request, by the Deputy Administrator. This requirement typically applies to persons who transport AWA-covered animals. Persons already registered to transport other animals will not be required to update their registration to transport birds. APHIS proposed no changes to this section and received no comments on it.

9 CFR Part 2, Subpart C: Research Facilities—§ 2.30

Under Subpart C, Research facilities, a newly regulated research facility under this proposal must register by completing a registration application form available from APHIS. The chief executive officer of the newly registered research facility is required to appoint an IACUC consisting of qualified persons to assess the research facility's animal program, facilities, and procedures. Each research facility also needs to have an attending veterinarian and maintain a program of veterinary care. Registered research facilities are required to maintain records of IACUC meetings, activities involving animals, and animals purchased or acquired by the facility.

Several commenters stated that birds bred for use in research should also be regulated under the proposed standards. One such commenter stated that, assuming the proposed standards will form the baseline defining the minimum care for birds, there is no reason for experimental facilities to be exempt from coverage. On the other hand, some commenters expressed the view that current regulation of Federal and non-Federal research facilities is already sufficient and that applying the proposed standards to facilities using birds bred for research would be unduly redundant and costly, without a commensurate increase in humane protection for birds. The commenter added that another inspection as required under the standards would be unlikely to uncover deficiencies that IACUC inspections did not detect, and recommended that APHIS reduce redundancy by aligning its review policies with those of the U.S. Public Health Service (PHS).

Birds bred for use in research are excluded as “animals” from the AWA regulations as that term is defined in the Act, so the use of such birds at research facilities is therefore not regulated. However, while the birds themselves are not subject to regulation if bred for use in research, research facilities using such birds are required to register with APHIS

17

and adhere to standards under the Act and regulations in § 2.30, provided that they also conduct research on other live “animals” as this term is defined in § 1.1 of the regulations. The regulations in § 2.30 include monitoring by the IACUC of animal facilities and uses of animals to ensure that they receive humane care, and that the facility follows professional standards governing the care, treatment, and use of animals, including appropriate use of anesthetic, analgesic, and tranquilizing drugs, prior to, during, and following actual research, teaching, testing, surgery, or experimentation. Regulation by other Federal agencies does not necessarily address animal welfare considerations covered under the AWA.

17

Although only non-Federal research facilities are required to register with APHIS, Federal facilities must still maintain an IACUC and maintain the same standards of humane care and treatment as indicated in § 2.37.

Moreover, as another commenter explained, Federal agencies

18

either voluntarily or by law follow PHS regulation and oversight policies for their animal research facilities, which include requirements for compliance with the AWA. As the commenter noted, Federal researchers who use birds in research also submit proposals for IACUC review, and facilities where birds are housed or studied are subject to semiannual IACUC inspections. Finally, we note that in a recent rulemaking

19

APHIS aligned several IACUC review provisions in subpart C with PHS policies.

18

Under § 2.30(a)(1), Federal research facilities are not required to register with APHIS.

19

“AWA Research Facility Registration Updates, Reviews, and Reports” (86 FR 66919-66926, Docket No. APHIS-2019-0001), November 24, 2021.

A commenter noted that wild birds or birds that are otherwise not exempt from regulation and that are studied in captivity may reproduce while in captivity and asked that any such birds be considered “bred for research” and therefore exempt from regulations under the AWA. The commenter noted that the proposal's definition of

bred for use in research

does not explicitly exempt unintentional offspring of wild birds or birds that are otherwise not exempt from regulation which are born in captivity, and asked that we exempt them from regulation by including them under the definition of

bred for use in research.

Similarly, a commenter asked whether offspring of wild birds brought into captivity and bred for research purposes would be regulated.

Offspring of wild birds that reproduce in captivity and are used for research are considered to be bred for use in research and not covered under the regulations. We did not intend to mean the definition to apply to any birds bred in captivity, but rather those bred in captivity and used in research. We note that in an earlier section of this rule we indicated that we have amended the definition of

bred for use in research

to mean “an animal that is bred in captivity and used for research, teaching, testing, or experimentation purposes.”

Another commenter noted that the proposal is silent on how it would apply to ornithological research done in the field that does not qualify as a field study as defined in 9 CFR part 1. The commenter added that most ornithological research involves birds in the wild and much of it would not be exempt under the specific field studies provision. The commenter asked APHIS to clarify that the regulations do not apply to this type of research.

Field studies that do not materially alter the birds, such as observational studies, are not covered under the AWA regulations. Any study that involves an invasive procedure, harms, or materially alters the behavior of an animal under study is not considered a field study under the definition of that term and is covered by the regulations.

A commenter noted that although the USDA has not proposed regulations for maintaining acquisition and disposition records for birds by research facilities, the agency should implement such regulations in order to ensure bird health and welfare and preserve the integrity of research.

Acquisition and disposition records, which are required at research facilities for dogs and cats, allow APHIS to determine whether animals are being acquired or disposed of in accordance with the regulations. However, we have no evidence that birds are being

acquired or disposed of illegally by research facilities. If such evidence emerges, we will investigate accordingly.

The same commenter stated that APHIS must include regulatory considerations for birds used in laboratories to minimize excessive or unwarranted pain and distress, among them a limit on the number of invasive surgeries, analgesic plans for painful procedures, and limits on anesthetic episodes, restraint, and injections.

Birds used by the laboratories would be considered “bred for use in research” provided that they were bred in captivity and thus exempt from regulations under the Act. With respect to research conducted on birds that were not bred in captivity, § 2.31(d) of subpart C, Research facilities, includes several requirements for ensuring IACUC review of all activities involving animals with respect to avoiding or minimizing discomfort, distress, and pain. These include use of analgesics and limits on numbers of operative procedures performed.

A commenter asked if a “newly registered site” means it is newly registered for birds, or newly registered through the USDA.

Contextually within the proposed rule, “newly registered research facility” meant a research facility that is not currently registered with APHIS but that would need to be registered with APHIS as a result of the rule, for example, a research facility that solely conducts research on wild-caught birds. A currently registered facility would not need to re-register just for birds, but would need to follow the bird-specific requirements of this rule following the implementation period afforded by this rule.

IACUC Review of Activities Involving Animals—§ 2.31(d)

Under § 2.31 of the regulations, each registered research facility must establish an IACUC to assess its animal program, facilities, and procedures. The IACUC must have at least three members, one of whom must be a Doctor of Veterinary Medicine, with training or experience in laboratory animal science and medicine, who has direct or delegated program responsibility for activities involving animals at the research facility. Another member must not be affiliated with the facility at all, and is intended to provide representation for general community interests.

In order to approve proposed activities or proposed significant changes in ongoing activities, paragraph (d) of § 2.31 requires that the IACUC conduct a review of those components of the activities related to the care and use of animals and determine that the proposed activities are in accordance with the regulations, unless acceptable justification for a departure is presented in writing.

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The IACUC is also required to determine that the proposed activities or significant changes in ongoing activities meet a number of requirements, including ones related to activities that involve surgery. If they wish, facilities that use birds

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