[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Proposed Rules]
[Pages 36158-36162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16922]


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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 [email protected].

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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