[Federal Register: December 8, 2009 (Volume 74, Number 234)]
[Rules and Regulations]               
[Page 64638-64640]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 21

[FWS-R9-MB-2009-0071; 91200-1231-9BPP]
RIN 1018-AW98

Migratory Bird Permits; States Delegated Falconry Permitting 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: The States of Mississippi, Montana, Oklahoma, Pennsylvania, 
Texas, and Utah have requested that we, the U.S. Fish and Wildlife 
Service, delegate permitting for falconry to the State, as provided 
under the regulations at 50 CFR 21.29. We have reviewed regulations and 
supporting materials provided by the States, and have concluded that 
their regulations comply with the Federal regulations. We change the 
falconry regulations accordingly.

DATES: This rule is effective January 7, 2010.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-



    We, the U.S. Fish and Wildlife Service, published a final rule in 
the Federal Register on October 8, 2008, to revise our regulations 
governing falconry in the United States (50 CFR 21.29). The regulations 
provide that, when a State meets the requirements for operating under 
the regulations, falconry permitting must be delegated to the State. 
The States of Mississippi, Montana, Oklahoma, Pennsylvania, Texas, and 
Utah have submitted revised falconry regulations and supporting 
materials, and have requested to be allowed to operate under the 
revised Federal regulations. We have reviewed the States' regulations 
and determined that they meet the requirements of 50 CFR 21.29(b). 
According to the regulations at Sec.  21.29(b)(4), we must issue a rule 
to add the State to the list at Sec.  21.29(b)(10) of approved States 
with a falconry program. We change the Federal regulations accordingly. 
Therefore, a Federal permit will no longer be required to practice 
falconry in the States of Mississippi, Montana, Oklahoma, Pennsylvania, 
Texas, and Utah beginning January 1, 2010.

Administrative Procedure

    In accordance with section 553 of the Administrative Procedure Act 
(5 U.S.C. 551 et seq.), we are issuing this final rule without prior 
opportunity for public comment. Under the regulations at 50 CFR 
21.29(b)(1)(ii), the Director of the U.S. Fish and Wildlife Service 
must determine if a State, tribal, or territorial falconry permitting 
program meets Federal requirements. When the Director makes this 
determination, the Service is required by regulations at 50 CFR 
21.29(b)(4) to publish a rule in the Federal Register adding the State, 
tribe, or territory to the list of those approved for allowing the 
practice of falconry. On January 1st of the calendar year following 
publication of the rule, the

[[Page 64639]]

Service will terminate Federal falconry permitting in any State 
certified under the regulations at 50 CFR 21.29. This is a ministerial 
and non-discretionary action that must be enacted in short order to 
enable the subject States to assume all responsibilities of falconry 
permitting by January 1, 2010, the effective date of this regulatory 
amendment. Further, the relevant regulation at 50 CFR 21.29 governing 
the transfer of permitting authority to these States has already been 
subject to public notice and comment procedures. Therefore, in 
accordance with 5 U.S.C. 553(b)(3)(B), we did not publish a proposed 
rule in regard to this rulemaking action because, for good cause as 
stated above, we found prior public notice and comment procedures to be 

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866. OMB bases its 
determination upon the following four criteria:
    a. Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    b. Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    c. Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    d. Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small entities (that 
is, small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act, and have determined that this action will not have a 
significant economic impact on a substantial number of small entities. 
This rule delegates authority to States that have requested it, and 
those States have already changed their falconry regulations. This rule 
does not change falconers' costs for practicing their sport, nor does 
it affect businesses that provide equipment or supplies for falconry.
    Consequently, we certify that, because this rule will not have a 
significant economic effect on a substantial number of small entities, 
a regulatory flexibility analysis is not required.
    This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). 
It will not have a significant economic impact on a substantial number 
of small entities.
    a. This rule does not have an annual effect on the economy of $100 
million or more. There are no costs to permittees or any other part of 
the economy associated with this regulations change.
    b. This rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The practice of falconry does not 
significantly affect costs or prices in any sector of the economy.
    c. This rule will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Falconry is an endeavor of private individuals. Neither 
regulation nor practice of falconry significantly affects business 

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule will not ``significantly or uniquely'' affect small 
governments in a negative way. A small government agency plan is not 
required. The four States affected by this rule applied for the 
authority to issue permits for the practice of falconry.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year; i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.


    In accordance with E.O. 12630, the rule does not have significant 
takings implications. A takings implication assessment is not required. 
This rule does not contain a provision for taking of private property.


    This rule does not have sufficient Federalism effects to warrant 
preparation of a Federalism assessment under E.O. 13132. The States 
being delegated authority to issue permits to conduct falconry have 
requested that authority. No significant economic impacts are expected 
to result from the regulation of falconry.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the rule does not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    We examined this rule under the Paperwork Reduction Act of 1995. 
OMB has approved the information collection requirements of the 
Migratory Bird Permits Program and assigned OMB control number 1018-
0022, which expires November 30, 2010. This regulation change does not 
add to the approved information collection. Information from the 
collection is used to document take of raptors from the wild for use in 
falconry and to document transfers of raptors held for falconry between 
permittees. A Federal agency may not conduct or sponsor and a person is 
not required to respond to a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    We evaluated the environmental impacts of the changes to these 
regulations, and determined that this rule does not have any 
environmental impacts. Within the spirit and intent of the Council on 
Environmental Quality's regulations for implementing the National 
Environmental Policy Act (NEPA), and other statutes, orders, and 
policies that protect fish and wildlife resources, we determined that 
these regulatory changes do not have a significant effect on the human 
    Under the guidance in Appendix 1 of the Department of the Interior 
Manual at 516 DM 2, we conclude that the regulatory changes are 
categorically excluded because they ``have no or minor potential 
environmental impact''

[[Page 64640]]

(516 DM 2, Appendix 1A(1)). No more comprehensive NEPA analysis of the 
regulations change is required.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have evaluated potential effects on Federally recognized Indian Tribes 
and have determined that this rule will not interfere with Tribes' 
ability to manage themselves or their funds or to regulate falconry on 
Tribal lands.

Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. Because this rule only 
affects the practice of falconry in the United States, it is not a 
significant regulatory action under E.O. 12866, and will not 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effects is required.

Environmental Consequences of the Proposed Action

    Socioeconomic. We do not expect the proposed action to have 
discernible socioeconomic impacts.
    Raptor populations. This rule will not change the effects of 
falconry on raptor populations. We have reviewed and approved the State 
    Endangered and Threatened Species. This rule does not change 
protections for endangered and threatened species.

Compliance With Endangered Species Act Requirements

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this chapter'' (16 
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure 
that any action authorized, funded, or carried out * * * is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). Delegating falconry 
permitting authority to States with approved programs will not affect 
threatened or endangered species or their habitats in the United 

List of Subjects in 50 CFR Part 21

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

For the reasons stated in the preamble, we amend part 21 of subpart C, 
subchapter B, chapter I, title 50 of the Code of Federal Regulations, 
as follows:


1. The authority citation for part 21 continues to read as follows:

    Authority: .0 Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 
703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public 
Law 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

Sec.  21.29  [Amended]

2. Amend Sec.  21.29 as follows:
a. In paragraph (b)(10)(i), remove the brackets and the words ``[--
States, tribes, and territories in compliance with these revised 
regulations--]'' and add in their place the words ``Mississippi, 
Montana, Oklahoma, Pennsylvania, Texas, or Utah,'' and
b. In paragraph (b)(10)(ii), remove the words ``Mississippi,'' 
``Montana,'' ``Oklahoma,'' ``Pennsylvania,'' ``Texas,'' and ``Utah''.

    Dated: November 20, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-29060 Filed 12-7-09; 8:45 am]