[Federal Register Volume 76, Number 224 (Monday, November 21, 2011)]
[Rules and Regulations]
[Pages 71910-71912]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29829]



Fish and Wildlife Service

50 CFR Part 21

[FWS-R9-MB-2011-0088; 91200-1231-9BPP]
RIN 1018-AX98

Migratory Bird Permits; States Delegated Falconry Permitting 
Authority; Technical Corrections to the Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: The States of Indiana, Iowa, Nebraska, New Jersey, New Mexico, 
North Carolina, Ohio, Oregon, Tennessee, Virginia, and Wyoming have 
requested that we delegate permitting for falconry to the State, as 
provided under our regulations. We have reviewed regulations and 
supporting materials provided by these States, and have concluded that 
their regulations comply with the Federal regulations. We change the 
falconry regulations accordingly. This rule also makes certain 
nonsubstantive editorial changes to correct minor errors and to clarify 
the regulations.

DATES: This rule is effective January 1, 2012.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, (703) 358-1825.



    We, the U.S. Fish and Wildlife Service, published a final rule in 
the Federal Register on October 8, 2008 (73 FR 59448), to revise our 
regulations governing falconry in the United States. These regulations 
are found in title 50 of the Code of Federal Regulations (CFR) at Sec.  
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 Indiana, Iowa, Nebraska, New Jersey, New Mexico, 
North Carolina, Ohio, Oregon, Tennessee, Virginia, and Wyoming 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 regulations administered by these 
States and have determined that their regulations 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 a State to the list at Sec.  21.29(b)(10) 
of approved States with a falconry program. Therefore, we change the 
Federal regulations accordingly, and a Federal permit will no longer be 
required to practice falconry in the States of Indiana, Iowa, Nebraska, 
New Jersey, New Mexico, North Carolina, Ohio, Oregon, Tennessee, 
Virginia, and Wyoming beginning January 1, 2012.
    In addition, to conform with the provisions of the Bald and Golden 
Eagle Protection Act (16 U.S.C. 668-668c), we change wording in 50 CFR 
21.29(a)(1)(ii) by replacing the word ``used'' with the words ``taken 
from the wild.''
    We also make three nonsubstantive improvements to the falconry 
regulations in 50 CFR 21.29. Paragraph

[[Page 71911]]

(c)(1) is not needed because the information in it is presented in 
paragraph (b)(10). We remove paragraph (c)(1). We also add paragraph 
(d)(1)(ii)(B)(3) to specify that an eyas raptor need not be kept in an 
indoor enclosure suitable for a flighted bird. Finally, we amend 
paragraph (f)(12)(i) to replace ``flight feathers'' with the more 
precise ``tail feathers and primary and secondary wing feathers.'' We 
also make other nonsubstantive editorial changes to correct minor 
errors and to clarify the regulations.

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 Service will terminate Federal falconry 
permitting in any State certified under the regulations at 50 CFR 
    This is a ministerial and nondiscretionary action that must be 
enacted shortly to enable the subject States to assume all 
responsibilities of falconry permitting by January 1, 2012, 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 unnecessary. In 
addition, per 5 U.S.C. 553(d)(1), we are making this rule effective in 
less than 30 days because this rule relieves a restriction: It 
relinquishes Federal control of the falconry permitting program to the 
approved States.

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 eight 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. 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 State 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.

[[Page 71912]]

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, 2013. 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'' (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 Action

    Socioeconomic. This action will not have discernible socioeconomic 
    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 subpart C of part 
21, subchapter B of 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); Pub. L. 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.

2. Amend Sec.  21.29 as follows:
a. In paragraph (a)(1)(ii), the second sentence, remove the word 
``used'' and add in its place the words ``taken from the wild'';
b. In paragraph (b)(10)(i), remove the word ``or'' immediately before 
the word ``Washington'', add a comma immediately following the word 
``Washington'', and add, in alphabetical order to the list of States, 
the words ``Indiana,'' ``Iowa,'' ``Nebraska,'' ``New Jersey,'' ``New 
Mexico,'' ``North Carolina,'' ``Ohio,'' ``Oregon,'' ``Tennessee,'' 
``Virginia,'' and ``or Wyoming,'';
c. In paragraph (b)(10)(ii), remove the words ``Indiana,'' ``Iowa,'' 
``Nebraska,'' ``New Jersey,'' ``New Mexico,'' ``North Carolina,'' 
``Ohio,'' ``Oregon,'' ``Tennessee,'' ``Virginia,'' and ``or Wyoming,'' 
and add the word ``or'' immediately before the word ``Wisconsin,'';
d. Remove paragraph (c)(1) and redesignate paragraphs (c)(2) through 
(c)(9) as paragraphs (c)(1) through (c)(8);
e. In newly redesignated paragraph (c)(2)(iii)(B), the second sentence, 
remove the words ``paragraph (c)(3)(iv)'' and add in their place the 
words ``paragraph (c)(2)(iv)'';
f. In newly redesignated paragraph (c)(5), the third sentence, remove 
the words ``paragraph (c)(3)'' and add in their place the words 
``paragraph (c)(2)'';
g. In paragraph (d)(1)(ii)(B)(2), revise the second sentence, and add 
new paragraph (d)(1)(ii)(B)(3) to read as set forth below;
h. In paragraph (e)(3)(ii)(E), remove the paragraph designations (1), 
(2), (3), (4), (5), (6), and (7) and add in their place the paragraph 
designations (1), (2), (3), (4), (5), (6), and (7);
i. In paragraph (e)(3)(viii), the first sentence, remove the words 
``paragraph (c)(3)(iv)'' and add in their place the words ``paragraph 
(c)(2)(iv)''; and
j. In paragraph (f)(12)(i), the first sentence, remove the words 
``flight feathers'' and add in their place the words ``tail feathers 
and primary and secondary wing feathers''.

Sec.  21.29  Falconry standards and falconry permitting.

* * * * *
    (d) * * *
    (1) * * *
    (ii) * * *
    (B) * * *
    (2) * * * Other innovative housing systems are acceptable if they 
provide the enclosed raptors with protection and allow them to maintain 
healthy feathers.
    (3) An eyas raptor may be kept in any suitable container or 
enclosure until it is capable of flight.
* * * * *

    Dated: November 4, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-29829 Filed 11-18-11; 8:45 am]