[Federal Register: July 22, 2009 (Volume 74, Number 139)]
[Proposed Rules]
[Page 36158-36162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy09-21]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 21 and 22
[FWS-R9-MB-2009-0002; 91200-1231-9BPP]
RIN 1018-AW44
Migratory Bird Permits; Changes in the Regulations Governing
Falconry
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: 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.
[[Page 36159]]
With this action, we propose to make several changes to those
regulations to correct inconsistencies and oversights and make the
regulations clearer. Because a few of our changes are technically
substantive, we are opening a comment period for this action.
DATES: We must receive any comments by August 21, 2009.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R9-MB-2009-0002; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203-1610.
We will not accept e-mail or faxed comments. We will post all
comments on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-
1825.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that the final action resulting from this proposal will
be based on the best scientific and commercial data available and be as
accurate and as effective as possible. Therefore, we request comments
or suggestions on this proposed rule from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested parties.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection at http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service (see FOR FURTHER INFORMATION CONTACT).
You may obtain copies of our previous actions concerning this
subject by mail (see FOR FURTHER INFORMATION CONTACT) or by visiting
the Federal eRulemaking Portal at http://www.regulations.gov.
I. Background
On October 8, 2008, we published a final rule in the Federal
Register (73 FR 59448) to revise our regulations governing falconry in
the United States. We eliminated the requirement for a Federal permit
to practice falconry, and made other changes to make it easier to
understand the requirements for the practice of falconry, including
take of raptors from the wild, and the procedures for obtaining a
falconry permit. The rule also added a provision allowing us to approve
falconry regulations that Indian Tribes, States, or U.S. territories
adopt. This final rule became effective November 7, 2008, and changed
the Code of Federal Regulations (CFR) at 50 CFR parts 21 and 22.
We have received questions about some parts of the final rule,
which we propose to clarify or correct. Because a few of our proposed
changes are technically substantive, we are opening a comment period
for this action.
II. Corrections
We propose to better define the term ``imprint'' in 50 CFR 21.3 by
changing the definition to mean a bird that is hand-raised in isolation
from the sight of other raptors from 2 weeks of age until it is fully
feathered.
Since publishing the rule, we have received inquiries about the
prohibition in 50 CFR 21.29(c)(3)(i)(E) on possession of captive-bred
raptors by Apprentice falconers. We continue to disallow possession of
eagles and of raptor species on the most recent national list of bird
species of conservation concern (currently Birds of Conservation
Concern 2008, U.S. Fish and Wildlife Service, Division of Migratory
Bird Management, Arlington, Virginia). However, captive-bred
individuals of some of the prohibited species may be appropriate for
Apprentice falconers. We failed to clearly prohibit possession of wild
raptors of threatened or endangered species. We propose to revise
paragraph (c)(3)(i)(E) to clarify this issue for the public and to
clarify that an Apprentice falconer may have a hybrid raptor of most
species.
In Sec. 21.29(c)(3)(ii)(C), we stated that to advance to the level
of General Falconer, an Apprentice Falconer must ``have practiced
falconry with wild raptor(s) at the Apprentice Falconer level or
equivalent for at least 2 years, including maintaining, training,
flying, and hunting the raptor(s) for at least 4 months in each year.''
However, because apprentices need not use wild raptors to advance to
the General Falconer level, we propose to remove the word ``wild'' from
this requirement. Likewise, we would correct Sec. 21.29(g)(5)(ii), to
make the requirements listed match those in Sec. 21.29(c)(3)(ii)(C).
Finally, for the same reason, we would remove the word ``wild'' from
Sec. 21.29(d)(1)(ii)(A).
In Sec. (c)(7)(i), we by replace the words ``in lieu of a'' with
the words ``in addition to the'' in the second sentence. The four
species named in that paragraph must be banded with a nonreusable band
that we will provide to the State, Tribe, or territory.
In Sec. 21.29(d)(1)(ii)(A)(4), we stated in our regulations for
housing falconry raptors that ``[e]ach raptor must have a pan of clean
water available.'' In cold weather conditions and with some perch
types, this requirement is impractical, and potentially harmful. We
propose to change the requirement to clarify that, if practical, a
water pan should be made available for a falconry bird.
In an oversight, the regulations at Sec. 21.29(e)(3)(ii) state
that General or Master falconers ``may take raptors less than 1 year of
age from the wild during any period or periods specified by the State,
Tribe, or territory.'' This constraint was not put in place for
Apprentice falconers, so we wish to add the relevant language to the
regulations, at Sec. 21.29(e)(3)(i).
Since the final rule was published, we have been asked about the
use of falconry birds in demonstrating or advertising falconry-related
items such as hoods and telemetry equipment. We propose to add a
sentence to Sec. 21.29(f)(9)(i) clarifying that filming, photography,
or illustration of falconry birds to demonstrate or advertise falconry
equipment is acceptable.
Finally, we make several small word changes or additions to make
these regulations compliant with other regulations. We also correct
paragraph designations for several subparagraphs by indicating that the
designations should have published in italics to conform with style
requirements of the Office of the Federal Register, which requires that
paragraph designations in the CFR follow this order: (a), (1), (i),
(A), (1), and (i). Because several of the other proposed changes are
substantive,
[[Page 36160]]
we request public comment on this proposed rule.
III. Required Determinations
Clarity of This Regulation
Executive Order (E.O.) 12866 requires each agency to write
regulations that are easy to understand. We invite your comments on how
to make this rule easier to understand, including answers to questions
such as the following:
1. Are the requirements in the rule clearly stated?
2. Does the rule contain technical language or jargon that
interferes with its clarity?
3. Does the format of the rule (grouping and order of sections, use
of headings, paragraphing, etc.) aid or reduce its clarity?
4. Would the rule be easier to understand if it were divided into
more (but shorter) sections? (A ``section'' appears in bold type and is
preceded by the symbol Sec. and a numbered heading; for example:
``Sec. 21.29 Falconry standards and falconry permitting.'')
5. Does the description of the rule in the Supplementary
Information section of the preamble help you to understand the proposed
rule? What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.
You also may e-mail comments to Exsec@ios.doi.gov.
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
proposed 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
recipients.
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
because the changes we are proposing are intended primarily to clarify
and correct small problems with the published regulations.
Consequently, we certify that because this proposed 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 these regulations 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 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
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. Falconry
is an endeavor of private individuals. Neither regulation nor practice
of falconry affects small government activities in any significant way.
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. Though States may have
to revise their falconry regulations to comply with the proposed
revisions, nearly every State already has falconry regulations in
place. Therefore, revisions of the State regulations should not be
significant.
Takings
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.
Federalism
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' ability to manage themselves or their funds.
No significant economic impacts are expected to result from the
regulation of falconry. However, this rule provides the opportunity for
States to cooperate in management of falconry permits and to ease the
permitting process for permit applicants.
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
[[Page 36161]]
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 significant changes
to these regulations, and determined that the clarifications and
corrections in this rule do 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 environment.
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 Proposed Action
The changes we propose are primarily in the combining,
reorganizing, and rewriting of the regulations. The environmental
impacts of this action are limited.
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.
Endangered and Threatened Species. This proposed rule has language
additions or changes that clarify protections for endangered and
threatened species. The rule does not itself make any changes to those
protections.
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)). These regulatory
corrections and clarifications would not affect threatened or
endangered species or their habitats in the United States.
List of Subjects
50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
For the reasons stated in the preamble, we propose to amend part 21
of subpart C, subchapter B, chapter I, title 50 of the Code of Federal
Regulations, as follows:
PART 21--MIGRATORY BIRD PERMITS
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); 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. 21.3 [Amended]
2. Amend Sec. 21.3 in the definition of the term ``Imprint'' by
removing the words ``has fledged'' and adding in their place the words
``is fully feathered.''
Sec. 21.29 [Amended]
3. Amend Sec. 21.29 as follows:
a. Redesignate paragraphs (c)(3)(i)(C)(1), (2), and (3) as
paragraphs (c)(3)(i)(C)(1), (2), and (3);
b. Revise paragraph (c)(3)(i)(E) to read as set forth below;
c. Amend paragraph (c)(3)(ii)(C) by removing the word ``wild'' from
the first sentence;
d. Amend paragraphs (c)(3)(iii)(C) and (c)(3)(iv)(B) by adding the
words ``for use in falconry'' at the end of both paragraphs;
e. Redesignate paragraphs (c)(3)(iv)(A)(1) and (2) as paragraphs
(c)(3)(iv)(A)(1) and (2);
f. Amend paragraph (c)(7)(i) by adding the words ``or from another
falconer'' after the word ``rehabilitator'' in the first sentence;
g. Amend paragraph (c)(7)(i) in the second sentence by removing the
words ``in lieu of a'' and adding the words ``in addition to the'' in
their place;
h. Amend paragraph (d)(1)(ii)(A) by removing the word ``wild'';
i. Redesignate paragraphs (d)(1)(ii)(A)(1), (2), (3), and (4) as
paragraphs (d)(1)(ii)(A)(1), (2), (3), and (4) and revise paragraph
(d)(1)(ii)(A)(4) to read as set forth below;
j. Redesignate paragraphs (d)(1)(ii)(B)(1) and (2) as paragraphs
(d)(1)(ii)(B)(1) and (2) and paragraphs (d)(1)(ii)(D)(1), (2), and (3)
as paragraphs (d)(1)(ii)(D)(1), (2), and (3);
k. Amend paragraph (e)(1)(v) by adding the words ``or wildlife''
after the word ``livestock'' in both places where it occurs;
l. Revise paragraph (e)(3)(i) to read as set forth below;
m. Amend paragraphs (e)(3)(iii), (e)(3)(iii)(A), and (e)(3)(iii)(B)
by adding the words ``or wildlife'' after the word ``livestock''
wherever it occurs;
n. Redesignate paragraphs (e)(3)(vi)(C)(1) and (2) as paragraphs
(e)(3)(vi)(C)(1) and (2);
o. Revise paragraph (f)(9)(ii) to read as set forth below; and
p. Amend paragraph (g)(5)(ii) by removing the words ``taken from
the wild'' and ``an average of 6 months per year, with.''
Sec. 21.29 Falconry standards and falconry permitting.
* * * * *
(c) * * *
(3) * * *
(i) * * *
(E) You may possess a raptor of any Falconiform or Strigiform
species except a Federally listed threatened or endangered species, a
bald eagle (Haliaeetus leucocephalus), a white-tailed eagle (Haliaeetus
albicilla), a
[[Page 36162]]
Steller's sea-eagle (Haliaeetus pelagicus), or a Golden eagle (Aquila
chrysaetos), including wild, captive-bred, or hybrid individuals of
these species.
* * * * *
(d) * * *
(1) * * *
(ii) * * *
(A) * * *
(4) In most cases, each raptor should have a pan of clean water
available. However, this requirement is waived if weather conditions,
the perch type used, or some other factor makes it inadvisable to have
water available to the raptor.
* * * * *
(e) * * *
(3) * * *
(i) If you are an Apprentice Falconer, you may take raptors less
than 1 year of age from the wild during any period or periods specified
by the State, Tribe, or territory. You may take any species from the
wild except any listed as a national Species of Conservation Concern in
the most recent list of ``Birds of Conservation Concern'' from the
Division of Migratory Bird Management, a bald eagle (Haliaeetus
leucocephalus), a white-tailed eagle (Haliaeetus albicilla), a
Steller's sea-eagle (Haliaeetus pelagicus), a Golden eagle (Aquila
chrysaetos), or a Federally listed threatened or endangered species.
* * * * *
(f) * * *
(9) * * *
(ii) You may not use falconry raptors for entertainment; for
advertisements; as a representation of any business, company,
corporation, or other organization; or for promotion or endorsement of
any products, merchandise, goods, services, meetings, or fairs, except
for products related directly to falconry, such as hoods, telemetry
equipment, giant hoods, perches, and materials for raptor facilities.
* * * * *
PART 22--EAGLE PERMITS
4. The authority citation for part 22 continues to read as follows:
Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C.
1531-1544.
Sec. 22.24 [Amended]
5. Amend Sec. 22.24(b) by adding the words ``or wildlife'' after
the word ``livestock'' in both places where it occurs.
Dated: June 16, 2009.
Jane Lyder,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-16922 Filed 7-21-09; 8:45 am]
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