[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14597]


[[Page Unknown]]

[Federal Register: June 16, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 22

RIN 1018 AB81

 

Eagle Transportation Permits for American Indians and Public 
Institutions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service proposes to revise the general 
eagle permit restrictions applicable to American Indians and public 
institutions. The Service proposes to issue permits of limited duration 
and conditions, for the transportation into and out of the United 
States of eagle parts, nests or eggs or articles containing such parts, 
nests or eggs of the bald eagle (Haliaeetus leucocephalus) or the 
golden eagle (Aquila chrysaetos) that are lawfully possessed by 
American Indians and public institutions.
    The proposed regulation will provide for eagle permits to be issued 
only for transportation into and out of the United States when the 
eagle parts have religious significance or value, or are being 
transported by a public institution for scientific or exhibition 
purposes. The Service makes this proposal in order to address the 
concerns which have been expressed by American Indians and public 
institutions who have sought the Service's permission for the 
international travel of lawfully possessed eagle parts or other 
articles containing eagle parts.

DATES: Comments must be submitted on or before August 15, 1994.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Director, U.S. Fish and Wildlife Service, P.O. Box 3247, 
Arlington, Virginia 22203-3247. Comments and materials may be hand-
delivered to the U.S. Fish and Wildlife Service, Division of Law 
Enforcement, 4401 N. Fairfax Drive, room 500, Arlington, Virginia, 
between the hours of 8 a.m. and 4 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT:Frank Shoemaker, Special Agent in 
Charge, Branch of Investigations, Division of Law Enforcement, Fish and 
Wildlife Service, U.S. Department of Interior, Washington, DC 20240, 
Telephone Number (703) 358-1949.

SUPPLEMENTARY INFORMATION: 

Background

    The golden eagle and most notably the bald eagle are proud symbols 
of our nation's natural beauty, our democratic form of government and 
our national heritage. The bald eagle was selected by the Continental 
Congress in 1782 as our national symbol and was given special 
protection by Congress in the Eagle Act of June 8, 1940. The Act as 
originally enacted provides that the Secretary of Interior may permit 
the taking and possession of bald eagle specimens for the scientific or 
exhibition purposes of public museums, scientific societies, and 
zoological parks.
    The Eagle Act was amended by Congress on October 24, 1962 (16 
U.S.C. 668a) to include the golden eagle within its provisions and to 
permit the taking, possession, and transportation of eagle specimens 
for the religious purposes of Indian tribes.

Summary of Comments and Information Received

    On Thursday, November 14, 1991, the Service published in the 
Federal Register a Notice of Intent to Review 50 CFR part 22 (56 FR 
57872). In this notice the Service requested that all interested 
parties submit written comments. In response to this request the 
Service received six comments pertaining to 50 CFR part 22. The Service 
has carefully considered all comments received in response to the 
November 14, 1991, Federal Register notice in proposing these changes 
to part 22.
    In making this proposal the Service has carefully considered the 
recommendations made by commentaries in response to the Notice of 
Intent to Review published on Thursday November 14, 1991, Federal 
Register (56 FR 57872). The Service invites comments on this proposed 
rule and on all comments pertaining to Part 22, summarized herein, 
submitted in response to the Notice of Intent to Review.

Comments Pertaining to Section 22.21. Permits for Scientific or 
Exhibition Purposes

    Several comments were received on the proposed revision of Section 
22.21. One recommendation was that Sec. 22.21, Permits for Scientific 
or Exhibition Purposes, limiting possession of bald or golden eagles to 
museums, public scientific societies and zoological parks, should be 
amended to allow eagles to be placed in private institutions. The 
commenter noted that there has been an increased number of birds that 
are for various reasons non-releasable and hard to place into public 
institutions. The Service does not anticipate changing the current 
regulations to allow for the placement of eagles with private 
institutions. The Service has been successful in placing non-releasable 
birds in public institutions in the past and expects the availability 
of these types of placements to continue. Public institutions have been 
the placement of preference for such birds because they usually provide 
a greater opportunity for the citizens of the United States to enjoy 
the rare beauty of these birds.

Comments Pertaining to Section 22.22. Permits for Indian Religious 
Purposes

    One commenter requested that the Service include language within 
the regulations that would make it easier for tribal members to obtain 
eagle feathers. The Service has striven to make its current procedures 
as fair and equitable as possible in light of the limited supply and 
the increasing demand for eagle feathers. The Service is working with 
the tribal entities to make substantive changes in its policies.
    Another recommendation was that Service procedures be revised to 
allow American Indians who find dead eagles to have the same eagle they 
found returned, because of what was termed, the found eagle's 
``spiritual and cultural'' significance to individual American Indians. 
The Service recognizes and has carefully considered the concern raised. 
The Service is presently reviewing its policies and procedures to 
provide for this special need and allow American Indians to pick up and 
keep eagles found dead on tribal lands. The Service is also making 
administrative changes to allocate more resources to the National Eagle 
Repository and to simplify the entire eagle permit process for the 
religious use of American Indians. The Service will continue to work 
with tribal entities to develop recommendations to enhance these 
initial efforts.
    Another recommendation was to revise the applicant certification 
requirement and permit issuance criteria set out in Sec. 22.22. The 
Service has traditionally followed, as a matter of policy, guidelines 
established by the Bureau of Indian Affairs (Bureau) in reviewing such 
matters. These same guidelines are used by the Bureau to determine the 
status of an individual seeking federal assistance. The Bureau's 
certification simply indicates that an applicant is a member of a 
federally-recognized tribe in good standing. The establishment of an 
additional set of guidelines for the sole purpose of the allocation of 
eagles feathers would be redundant and inconsistent with the equitable 
standards set out by the Bureau. The Service, therefore, will continue 
to defer to the Bureau's criteria and anticipates no changes in the 
current certification requirements.
    A recommendation was also made to include language allowing tribal 
members who lack proper paperwork to prove that they have permission 
from the Service to possess eagle feathers. Under current regulations, 
bald eagle parts, nests, or eggs lawfully acquired prior to June 8, 
1940, and golden eagles parts, nests or eggs lawfully acquired prior to 
October 24, 1962, may be possessed, or transported within the United 
States without a Federal permit. Except for the above stated 
exceptions, a valid permit for American Indian religious purposes is 
required. No change in these provisions are anticipated at this time.

Comments Pertaining to Section 22.23. Permits to Take Depredating 
Eagles

    Another recommendation relating to part 22 was the suggestion that 
the Service should include within the current issuance criteria 
required for Permits to take depredating eagles, in Sec. 22.23(a), an 
additional permit criteria requiring the applicant to provide 
documentation of other methods that were attempted to reduce 
depredations. The Service anticipates no changes in the permit criteria 
for permits to take depredating eagles at this time. The Service 
considers the factual inquiry already required under existing 
application criteria to be sufficient to assure the continued 
protection of wild eagle populations.
    Comments were also received on the subject of the use of eagles in 
falconry. Specific comments were that the Service should relax and 
simplify the requirements necessary for obtaining permits for golden 
eagles used in falconry for falconers who want to fly eagles. The 
Service considers current permit requirements as generally necessary 
and proper in order to assure the safety and welfare of both the eagle 
and the falconer. In the Service's considered view, any relaxation of 
these standards to allow other than master class falconers to possess 
golden eagles for falconry could be detrimental to the bird and the 
handler. Therefore, no changes to this effect are anticipated within 
the regulation at this time.
    Another commenter recommended that eagles taken under permits, 
pursuant to Sec. 22.23(b)(3), Permits to take depredating eagles, 
should be made available for scientific purposes, including deposition 
in a museum. In the Service's experience, the demand for eagles and 
eagle parts by American Indians is greater than the supply. The 
Service, therefore, has an obligation to fulfill the religious needs of 
the American Indian before alternative depositions are considered. 
Therefore, the Service does not anticipate making any changes at this 
time.

Need for Proposed Rulemaking

    The Fish and Wildlife Service proposes to amend the regulations 
restricting the issuance of eagle permits, in order to respond to the 
particular needs of American Indians and public institutions. In order 
to assist the legitimate needs of American Indians and public 
institutions for bald or golden eagle feathers and other parts, the 
Service currently provides for the issuance of permits to American 
Indians and public institutions to possess bald and golden eagle 
feathers or parts. Under the permit system the possession and 
transportation within the United States of eagle feathers and parts is 
legal, but they may not be imported, exported, purchased, sold, traded, 
bartered or offered for purchase, sale, trade or barter. The Service 
has established an eagle repository for eagle parts at the Clark R. 
Bavin National Fish and Wildlife Forensic Laboratory in Ashland, 
Oregon, where American Indians through the permit process may lawfully 
obtain feathers and other parts, nests or eggs of eagles.
    American Indians and representatives of public institutions in the 
past have sought the Service's permission to travel internationally 
with their lawfully possessed bald or golden eagle feathers, parts, 
eggs, nests or other articles which may contain eagle parts. A change 
in the permit requirements was necessitated because the regulations, as 
they currently exist, do not authorize the transportation into or out 
of the United States of religiously significant bald or golden eagle 
parts or articles containing such parts, nests or eggs by American 
Indians, or the transportation into or out of the United States or bald 
or golden eagle parts or articles containing such parts, nests or eggs 
for scientific or exhibition purposes. The Service, therefore, proposes 
to make accommodations for the religious needs of the American Indian 
community and for public institutions by making changes in the eagle 
permit regulations that generally prohibit all imports and exports of 
eagle parts, nests or eggs and do not differentiate between 
transportation within and transportation outside the United States.
    The Service proposes to amend the regulations to provide for the 
issuance of eagle permits when the parts are lawfully possessed by 
American Indians and public institutions for the transportation into 
and out of the United States. The intent or the end result of the 
transportation into and out of the United States by American Indians 
and public institutions shall not be, under any circumstance, for the 
purchase, sale, barter or trade of bald eagle or golden eagle parts, 
nests or eggs.
    The Service proposes to provide that eagle permits of limited 
duration may be issued under substantially the same general 
requirements and conditions applicable to the domestic possession and 
transportation of such articles by American Indians and public 
institutions. The Service hopes that this revision of the regulation 
will facilitate the international travel of American Indians and 
representatives of public institutions. The Service believes that it 
can serve its mandate to protect and preserve the viability of bald 
eagle or golden eagle populations and at the same time provided for a 
reasonable and proper balance of regulations which address the 
legitimate needs of the American Indian community and public 
institutions. In addition to the above changes, several references 
within the Sections have been updated or more clearly stated.

Required Determinations

    Note. This rule was not subject to Office of Management and 
Budget (OMB) review under Executive Order 12866. The Department of 
the Interior (Department) certifies that this proposed rule will not 
have a significant effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This 
action is not expected to have significant taking implications, as 
per Executive Order 12630. The only effect of this rule will be to 
make it easier for American Indians and public institutions to 
travel or move internationally with lawfully possessed articles 
containing bald or golden eagle parts. This proposed rule does not 
contain any additional information collection requirements, beyond 
those approved under OMB approval Number 1018-0022, that would 
require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act, (44 U.S.C. 3501 et seq.). This action 
does not contain any federalism impacts as described in Executive 
Order 12612. These proposed changes in the regulations in Part 22 
are regulatory and enforcement actions which are covered by a 
categorical exclusion from National Environmental Policy Act 
procedures under 516 Departmental Manual. An Environmental Action 
Memorandum is on file at the U.S. Fish and Wildlife Service Office 
in Arlington, Virginia. The determination has been made pursuant to 
Section 7 of the Endangered Species Act that the proposed revision 
to Part 22 will not effect a federally listed species.

Civil Justice Reform--Executive Order 12778

    In revising these regulations the Service has made every reasonable 
effort in formulating these proposals to ensure that these regulations:
    (A) Have no preemptive effects upon other regulations not being 
revised herein.
    (B) The major effects upon Federal regulations is to provide eagle 
permits for the transportation into and out of the United States with 
lawfully obtained bald and golden eagle parts, nests, and eggs, for 
American Indian tribe religious use and public institutions for 
scientific and exhibition purposes.
    (C) The standards proposed in this proposed revision are intended 
to articulate a precise and understandable criterion of what 
transportation into and out of the United States is being regulated and 
how the affected interests may conform their activities and comply with 
applicable eagle permit regulations. This standard will promote 
regulatory simplification and burden reduction upon affected interests 
by providing notice:
    (1) That members of American Indian tribes and public institutions 
may now take their lawfully obtained eagle parts, nests, eggs, or items 
containing such with them when they travel outside the territory of the 
United States;
    (2) That, a Service eagle permit is required in order to transport 
eagle parts, nests, or eggs into or out of the United States;
    (3) That the Service will issue such permits under specified permit 
``Issuance criteria'' stated in 50 CFR 22.22(c);
    (4) That permits for the transportation of eagle parts, nests, or 
eggs into and out of the United States will be of certain and limited 
duration; and
    (5) That the import, export purchase, sale, barter, or trade, of 
eagle parts, nests, or eggs shall remain prohibited by regulation.
    (D) These proposed changes to the regulations in title 50 CFR part 
22 are intended to have no retroactive effect directly or indirectly.
    (E) The Service Administrative procedures for permit application, 
issuance, revocation, denial, and appeal are set out in title 50 CFR 
part 13. No additional Administrative procedures are anticipated for 
exhaustion of remedies.
    (F) All key terms have been defined within the CFR.

Author

    The originator of this proposed rule is Law Enforcement 
Specialist Paul McGowan, Division of Law Enforcement, U.S. Fish and 
Wildlife Service. Washington, DC.

List of Subjects in 50 CFR Part 22

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

Regulation Promulgation

    For the reasons set out in the preamble, title 50, chapter I, 
subschapter B of the Code of Federal Regulations is proposed to be 
amended as set forth below.

PART 22---[AMENDED]

    1. The authority citation for part 22 continues to read as follows:

    Authority: Sec. Eagle Protection Act of June 8, 1940, Chapter 
278, 54 Stat. 251; Pub. L. 87-884, 76 Stat. 1246; sec 2, Pub. L. 92-
535, 86 Stat 1065; sec 9, Pub. L. 95-616, 92 Stat. 3114 (16 U.S.C. 
668a).

    2. Section 22.1 is revised to read as follows:


Sec. 22.1  Purposes of regulations.

    The regulations contained in this Part govern the taking 
possession, transportation within the United States of bald and golden 
eagles for scientific, educational, depredation control purposes and 
for the religious purposes of Indian tribes, and the transportation 
into and out of the United States under permit of bald and golden 
eagles for scientific, educational, and Indian religious purposes. The 
import, export, purchase, sale, or barter of bald or golden eagles, 
their parts, nests, or eggs is not permitted by any regulation of this 
subchapter B.

    3. Section 22.2 is amended by revising paragraph (a) to read as 
follows:


Sec. 22.2  Scope of regulations.

    (a) Bald eagles, alive or dead, or their parts, nests, or eggs 
lawfully acquired prior to June 8, 1940, and golden eagles, alive or 
dead, or their parts, nests, or eggs lawfully acquired prior to October 
24, 1962, may be possessed, or transported within the United States 
without a Federal permit, but may not be transported into or out of the 
United States, imported, exported, purchased sold, traded, bartered, or 
offered for purchase, sale, trade, or barter; and all shipments 
containing such birds, parts, nests, or eggs must be marked as provided 
by 16 U.S.C. 3372(b) and Sec. 14.81 of this chapter: Provided, That no 
exemption from any statute or regulation shall accrue to any offspring 
of such birds.
* * * * *
    4. Section 22.3 is amended by adding in alphabetical order 
definitions for ``export,'' ``import,'' and ``transportation into and 
out of the United States'' to read as follows:


Sec. 22.3  Definitions.

* * * * *
    Export for the purpose of this Part does not include the 
transportation out of the United States pursuant to a valid 
transportation permit.
* * * * *
    Import for the purpose of this Part does not include the 
transportation of eagle parts into the United States pursuant to a 
valid transportation permit.
* * * * *
    Transportation into or out of the United States means that the item 
or items being transported into or out of the United States do not 
change ownership at any time, they are not transferred from one person 
to another in the pursuit of gain or profit, and are being transported 
into or out of the United States for Indian religious purposes, or 
scientific or exhibition purposes.


Sec. 22.11  [Amended]

    5. Section 22.11 is amended by removing the term 
``(Aquilachrysaetos)'' and adding in its place ``(Aquila chrysaetos)'' 
every where it appears.
    6. Section 22.12 is revised to read as follows:


Sec. 22.12  General restrictions.

    No person shall sell, purchase, barter, trade or offer for sale, 
purchase, barter or trade, export or import, at any time or in any 
manner, any bald eagle (Haliaeetus leucocephalus), or any golden eagle 
Aquila chrysaetos), or the parts, nests , or eggs of such birds, and no 
permit will be issued to authorize such acts. Permits may be issued 
pursuant to the provision of this part and parts 13, 17, 21 and 23 of 
this chapter, however, to allow the transportation into and out of the 
United States of lawfully possessed parts, nests or eggs of such birds 
for Indian religious purposes, or for scientific or exhibition 
purposes, subject to the conditions of the permit.
    7. Section 22.21 is amended by revising the introductory text to 
the Section, paragraph (a) introductory text, paragraph (b), and 
paragraph (c) introductory text, to read as follows:


Sec. 22.21  Permits for scientific or exhibition purposes.

    The Director may, upon receipt of an application and in accordance 
with the issuance criteria of this Section, issue a permit authorizing 
taking, possession, transportation within the United States, or 
transportation into and out of the United States of bald eagles or 
golden eagles, or their parts, nests, or eggs for the scientific or 
exhibition purposes of public museums, public scientific societies, or 
public zoological parks.
    (a) Application procedure. Applications for permits to take, 
possess, transport within the United States, or transport into and out 
of the United States bald or golden eagles, their parts, nets or eggs 
for scientific or exhibition purposes shall be submitted to the 
appropriate Assistant Regional Director--Law Enforcement (See: 
Sec. 13.11(b) of this chapter). Each such application must contain the 
general information and certification required by Sec. 13.12(a) of this 
chapter plus the following information:
* * * * *
    (b) Additional permit conditions. In addition to the general 
conditions set forth in Part 13 of this chapter, permits to take, 
possess, transport within the United States, or transport into and out 
of the United States bald or golden eagles for scientific or exhibition 
purposes, shall be subject to the following condition: In addition to 
any reporting requirement set forth in the permit, the permittee shall 
submit a report of activities conducted under the permit to the 
Assistant Regional Director--Law Enforcement within 30 days after 
expiration of the permit.
    (c) Issuance criteria. The Director shall conduct an investigation 
and not issue a permit to take, possess, transport within the United 
States, or transport into and out of the United States bald or golden 
eagles for scientific or exhibition purposes unless he has determined 
that such taking, possession, or transportation is compatible with the 
preservation of the bald or golden eagle. In making such determination, 
the Director shall consider, among other criteria, the following:
* * * * *
    8. Section 22.22 is amended by revising the introductory text to 
the Section, paragraph (a) introductory text, paragraph (a)(5), 
paragraph (b) introductory text, paragraph (b)(2), paragraph (c) 
introductory text and paragraph (d) to read as follows:


Sec. 22.22  Permits for Indian religious purposes.

    The Director may, upon receipt of an application and in accordance 
with the issuance criteria of this Section, issue a permit authorizing 
the taking, possession, transportation within the United States, and 
transportation into and out of the United States, of bald or golden 
eagles, or their parts, nets, or eggs for the religious use of Indians.
    (a) Application procedure. Applications for permits to take, 
possess, transport within the United States, and transport into and out 
of the United States bald or golden eagles, their parts, nests, or eggs 
for the religious use of Indians shall be submitted to the appropriate 
Assistant Regional Director--Law Enforcement (See: Sec. 13.11(b) of 
this chapter). Only applications from individual Indians will be 
accepted. Each such application must contain the general information 
and certification required by Sec. 13.12(b) of this chapter plus the 
following additional information:
* * * * *
    (5) Applicant must attach a certificate from the Bureau of Indian 
Affairs that the applicant is a member of an Indian tribe listed in the 
Federal Register notice published in accordance with 25 CFR 83.6(b).
* * * * *
    (b) Additional permit conditions. In addition to the general 
conditions set forth in part 13 of this chapter, permits to take, 
possess, transport within the United States, and transport into and out 
of the United States bald or golden eagles, their parts, nests or eggs, 
for the religious use of Indians shall be subject to the following 
conditions:
* * * * *
    (2) Permittees shall make such reports or submit inventories of 
eagle feathers or parts on hand as may be requested by the Assistant 
Regional Director--Law Enforcement.
    (c) Issuance criteria. The Director shall conduct an investigation 
and not issue a permit to take, possess, and transport within the 
United States, and transport into and out of the United States bald or 
golden eagles, their parts, nests or eggs, for the religious use of 
Indians unless he has determined that such taking, possession, and 
transportation is compatible with the preservation of the bald or 
golden eagle. In making such determination, the Director shall 
consider, among other criteria, the following:
* * * * *
    (d) Tenure of permits. Any permit issued pursuant to this Section 
under which the applicant is authorized to take eagles shall be valid 
during the period specified on the face thereof, which shall in no case 
be longer than 1 year from the date of issue. Any permit issued 
pursuant to this Part which authorizes the permittee to transport 
within the United States and possess eagles or their parts shall be 
valid for the life of the permittee unless sooner revoked. Any permit 
issued pursuant to this Part which authorizes the permittee to 
transport into or out of the United States eagle parts shall be valid 
for a period of 30 days or the date designated on the face of the 
permit unless amended or revoked.
    9. Section 22.23 is amended by revising paragraph (a) introductory 
text, and paragraph (b)(4) to read as follows:


Sec. 22.23  Permits to take depredating eagles.

* * * * *
    (a) Application procedure. Applications for permits to take 
depredating bald or golden eagles shall be submitted to the appropriate 
Assistant Regional Director--Law Enforcement (See Sec. 13.11(b) of this 
chapter). Each such application must contain the general information 
and certification required by Sec. 13.12(a) of this chapter plus the 
following additional information:
* * * * *
    (b) * * *
    (4) In addition to any reporting requirement set forth in the 
permit, the permittee shall submit a report of activities conducted 
under the permit to the Assistant Regional Director--Law Enforcement 
within 10 days following completion of the taking operations or the 
expiration of the permit whichever occurs first.
* * * * *
    10. Section 22.25 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec. 22.25  Permits to take golden eagle nests.

* * * * *
    (a) Application procedure. Applications for permits to take golden 
eagle nests must be submitted to the appropriate Assistant Regional 
Director--Law Enforcement (see Sec. 13.11(b) of this chapter) 
Applications are only accepted from persons engaged in a resource 
development or recovery operation, including the planning and 
permitting stages of an operation. Each application must contain the 
general information and certification required by Sec. 13.12(a) of this 
chapter plus the following additional information:
* * * * *
    Dated: May 9, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-14597 Filed 6-15-94; 8:45 am]
BILLING CODE 4310-55-M