[Federal Register: May 28, 2010 (Volume 75, Number 103)]
[Rules and Regulations]               
[Page 29917-29919]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 21

[FWS-R9-MB-2010-0020; 91200-1231-9BPP]
RIN 1018-AX09

Migratory Bird Permits; Changes in the Regulations Governing 
Migratory Bird Rehabilitation

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, published a final rule 
in the Federal Register on October 27, 2003, to create regulations 
governing migratory bird rehabilitation in the United States. Before 
creation of those regulations, rehabilitators were required to obtain a 
special purpose permit to engage in rehabilitation activities. The 
language in the final paragraph of the 2003 regulations dealt with the 
transition of special purpose permit holders to operation under the new 
rehabilitation permit regulations. This paragraph is no longer 
relevant, so we remove it from the regulation.

DATES: This regulations change will be effective on May 28, 2010.

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



    On October 27, 2003, we published a final rule in the Federal 
Register (68 FR 61123) to establish regulations for the issuance of 
permits to rehabilitate migratory birds in the United States. These 
regulations are at 50 CFR 21.31. Prior to issuance of the 
rehabilitation permit rule, migratory bird rehabilitators were required 
to obtain a special use permit to engage in rehabilitation activities. 
The last paragraph in the rehabilitation permit rule dealt with how we 
would handle issuing permits during the transition to the (then) new 
regulations. Since publication of that rule, all persons interested in 
having a permit to rehabilitate migratory birds must have transitioned 
from a special purpose permit to a rehabilitation permit. Because 
special purpose permits are valid for only 3 years, all of those 
permits in existence in 2003 have expired by now.
    Therefore, the text in 50 CFR 21.31(i), ``Will I need to apply for 
a new permit under this section if I already have a special purpose 
permit to rehabilitate birds, issued under Sec.  21.27 (Special purpose 
permits)?'' is no longer needed. With this final rule, our only change 
to the rehabilitation regulations is to remove all of the language 
under paragraph (i). This change is simply a ministerial administrative 
action to remove text that is no longer necessary from the Code of 
Federal Regulations and, therefore, will have no substantive effect on 
the general public.

Administrative Procedure

    In accordance with section 553 (b)(3)(B) of the Administrative 
Procedure Act (5 U.S.C. 551 et seq.), we are issuing this final rule 
without prior opportunity for public comment because public notice and 
comment procedures are unnecessary. We find that good cause exists to 
delete paragraph (i) of section 21.31 without going through the public-
notice-and-comment procedure because the transition language is 
anachronistic and no public input received through an open comment 
period could justify retention of this paragraph. For the same reasons 
stated above, we find that there is good cause to have this final rule 
take effect immediately upon publication in the Federal Register (5 
U.S.C. 553(d)(3).

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

[[Page 29918]]

action will not have a significant economic impact on a substantial 
number of small entities because the change in the regulation is simply 
to eliminate language that is no longer needed. Consequently, we 
certify that because this rule will not have a significant economic 
effect on any entity, let alone 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 these regulation changes.
    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 migratory bird 
rehabilitation 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. Neither regulation nor practice of migratory bird 
rehabilitation significantly affects business activities.

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. A small government agency plan is not required. Neither 
regulation nor practice of migratory bird rehabilitation affects small 
government activities.
    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. No revisions of State, 
tribal, or territorial regulations will be necessary.


    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. It will not 
interfere with the States' abilities to manage themselves or their 
funds. No significant economic impacts are expected to result from the 
regulation of migratory bird rehabilitation.

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 rule does not change the 
approved information collection. Information from the collection is 
used to ensure that rehabilitation permit applicants are qualified and 
that their activities are documented. 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 change to the 
regulations, and determined that, 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, the regulatory 
change does not have a significant effect on the human environment. 
Under the guidance in Appendix 1 of the Department of the Interior 
Manual at 516 DM 8, we conclude that the regulatory change is 
categorically excluded because it has ``no or minor potential 
environmental impact'' (516 DM 8.5(A)(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 migratory 
bird rehabilitation 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 migratory bird rehabilitation 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. No 
Statement of Energy Effects is required.

Environmental Consequences of the Proposed Action

    This action has no environmental or socioeconomic impacts.

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)). This regulatory change 
will not affect threatened or endangered species or their habitats in 
the United States.

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 subpart C of part 21, 
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:  Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 
703-12); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. 
L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

Sec.  21.31  [Amended]

2. Amend Sec.  21.31 by removing paragraph (i).

[[Page 29919]]

    Dated: May 17, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-12882 Filed 5-27-10; 8:45 am]