[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