[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Proposed Rules]
[Pages 69223-69225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28942]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-R9-MB-2011-0060; 91200-1231-9BPP]
RIN 1018-AX90


Migratory Bird Permits; Definition of ``Hybrid'' Migratory Bird

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise the definition of ``hybrid'' as it relates to birds protected 
under the Migratory Bird Treaty Act. At present, the definition applies 
only to hybrids of two species on the list of migratory birds at 50 CFR 
10.13. We propose to revise the definition to make it clear that it 
applies to the offspring of any species listed at 50 CFR 10.13.

DATES: Send comments on this proposal by February 6, 2012.

ADDRESSES: You may submit comments by either one of the following two 
methods:
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket FWS-R9-MB-
2011-0060.
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-R9-MB-2011-0060; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.

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

SUPPLEMENTARY INFORMATION: 

Background

    At present, at 50 CFR 21.3, the term ``hybrid'' is defined as the 
``offspring of birds listed as two or more distinct species in Sec.  
10.13 of subchapter B of this chapter, or offspring of birds recognized 
by ornithological authorities as two or more distinct species listed in 
Sec.  10.13 of subchapter B of this chapter.'' This means that, under 
the definition of ``hybrid'' birds at 50 CFR 21.3, the only hybrid 
migratory birds that are protected by our regulations under the 
Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712) are birds that are 
the offspring of two species already protected under the MBTA.
    This definition has created difficulties because it differs from 
the longstanding Service application of ``hybrid'' to falconry and 
raptor propagation birds, in particular. ``Hybrid'' was not defined 
prior to 2008, when the falconry regulations were substantially revised 
(73 FR 59448-59477, October 8, 2008). We defined ``hybrid'' in 50 CFR 
21.3 in a manner that conflicts with the use of the term in other 
regulations.
    To ensure that all appropriate hybrid migratory birds receive 
protection under our regulations implementing the MBTA, we are 
proposing a change to the definition of ``hybrid.'' The proposed 
definition change would make it clear that the offspring of any species 
listed at 50 CFR 10.13 is protected under the MBTA, regardless of how 
many generations that bird is removed from the wild. The proposed 
definition would also be consistent with the definition of ``migratory 
bird'' at 50 CFR 10.12, and with the definition of ``hybrid'' at 50 CFR 
23.5 of the regulations implementing the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES). The 
definition of ``migratory bird'' in 50 CFR 10.12 is: ``Migratory bird 
means any bird, whatever its origin and whether or not raised in 
captivity, which belongs to a species listed in Sec.  10.13 or which is 
a mutation or a hybrid of any such species. * * *'' (emphasis added). 
Likewise, the definition at 50 CFR 23.5 is ``Hybrid means any wildlife 
or plant that results from a cross of genetic material between two 
separate taxa when one or both are listed* * *'' (emphasis in original 
and added, respectively).
    The proposed definition would also be consistent with the purpose 
of the MBTA (16 USC 701): The object and purpose of this Act is to aid 
in the restoration of such birds in those parts of the United States 
adapted thereto where the same have become scarce or extinct, and also 
to regulate the introduction of American or foreign birds or animals in 
localities where they have not heretofore existed (emphasis added). If 
hybrid raptors, with one foreign parent (not listed on Sec.  10.13), 
could not be regulated under the MBTA, then these introduced birds 
could potentially pose a threat to native birds by, for example, 
competition or cross-breeding. The Service has recognized that threat 
in its regulations, explicitly prohibiting several times the release of 
hybrid raptors in the wild at 50 CFR 21.29 (b)(6)(v), (b)(12), 
(e)(9)(i), and (e)(9)(iv). If the Service did not have authority under 
the MBTA to regulate hybrids, then it would have no authority over 
release of hybrids under 50 CFR 21.29. The proposed definition change 
would thus harmonize with the Service's existing authority and 
regulation.
    Similarly, if the Service did not have authority to regulate 
hybrids in which one parent was not listed on Sec.  10.13, then it 
would have no authority to regulate hybrids with a ``prohibited 
raptor.'' In the 2008 revisions of the falconry regulations, the 
Service recently allowed possession of hybrids (50 CFR 
21.29(c)(3)(i)(E)), except for hybrids of certain species: ``You may 
possess a raptor of any Falconiform or Strigiform species, including 
wild, captive-bred, or hybrid individuals, except a federally listed 
threatened or endangered species, a bald eagle (Haliaeetus 
leucocephalus), a white-

[[Page 69224]]

tailed eagle (Haliaeetus albicilla), a Steller's sea-eagle (Haliaeetus 
pelagicus), or a golden eagle (Aquila chrysaetos)'' (emphasis added). 
Under the current definition, the Service would not have MBTA authority 
with a hybrid of a foreign non-Sec.  10.13 listed raptor and a 
``prohibited raptor,'' a conflict with this regulation. Again, the 
proposed definition change would harmonize with 50 CFR 21.29.
    Lastly, the change is consistent with the Service's broad 
interpretation of hybrid species. As early as 1983 (48 FR 31600, July 
8, 1983), the Service recognized that CITES and the MBTA cover hybrid 
species. The Service responded to comments that hybrids birds (and 
captive-bred birds) are not included within the terms of the MBTA, and 
the commenters implied that coverage of such birds in such regulations 
is an unlawful expansion of the MBTA. However, regulations governing 
captive-bred birds have been held to be within the Secretary's 
authority under the MBTA (U.S. v. Richards, 583 F.2d 491, 10th Cir. 
1978). The court upheld the regulations on the basis that MBTA 
enforcement would be hindered if the defense was available that a bird 
involved, in this case a captive-bred falcon, was raised in captivity. 
In view of this decision, and the Supreme Court's expansive reading of 
the MBTA in Andrus v. Allard, 444 U.S. 51 (1979), the Service believes 
the coverage of hybrids is similarly within the Secretary's broad 
authority under the MBTA. Later in 1998, the Service interpreted 
migratory bird broadly at 50 CFR 10.12 (1998) as ``whatever its origin, 
whether or not raised in captivity.'' Such a definition continues the 
broad interpretation of hybrid species, as the MBTA applies to 
migratory birds, ``whatever its origins.'' Only in the 2008 falconry 
regulations revisions did the Service amend the definition of hybrid 
species to both parents on Sec.  10.13. The proposed change returns the 
definition of hybrid to its earlier meaning, makes the Service's 
regulations consistent with its practices, as the Service's Office of 
Law Enforcement has treated hybrids as protected, in compliance with 
CITES. Hybrid raptors may be exceptionally difficult to identify, and 
without a regulation making it clear that hybrids raptors are protected 
under the MBTA as they are under CITES, the work of wildlife law 
enforcement and border inspectors would be more subjective and more 
difficult.

Public Comments

    We request comments on this proposed rule. You may submit your 
comments and supporting materials by one of the methods listed in the 
ADDRESSES section. We will not consider comments sent by email or fax, 
or written comments sent to an address other than the one 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 that we withhold this 
information from public review, but 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 (contact the person listed under FOR FURTHER 
INFORMATION CONTACT).

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant under Executive Order 12866 (E.O. 
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 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 (i.e., 
small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an agency certifies the rule would 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 would not have a significant economic impact on a 
substantial number of small entities. If adopted, there would no be 
costs associated with this proposed regulation change because the 
Service's Office of Law Enforcement has treated hybrids as protected, 
as is consistent with CITES. We have determined that because this 
proposed regulation change would not have a significant economic impact 
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 would not have a significant impact on a substantial number of small 
entities.
    a. This rule would not have an annual effect on the economy of $100 
million or more.
    b. This rule would not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, Tribal, or local 
government agencies, or geographic regions.
    c. This rule would 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.

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 would not affect small governments. A small government 
agency plan is not required. Amending the definition of ``hybrid'' at 
50 CFR 21.3 would not affect small government activities.
    b. This rule would not produce a Federal mandate of $100 million or 
greater in any year. This proposal is not a significant regulatory 
action.

Takings

    This proposed rule does not contain a provision for taking of 
private property. In accordance with Executive Order 12630, a takings 
implication assessment is not required.

Federalism

    This rule does not have sufficient Federalism effects to warrant 
preparation of a Federalism assessment

[[Page 69225]]

under Executive Order 13132. It would not interfere with the States' 
abilities to manage themselves or their funds. No significant economic 
impacts are expected to result from the proposed change in the 
definition of ``hybrid'' at 50 CFR 21.3.

Civil Justice Reform

    In accordance with Executive Order 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 of 1995

    This proposed rule does not contain any new information collections 
or recordkeeping requirements for which approval from the Office of 
Management and Budget (OMB) is required under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). We 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 have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and Part 516 of 
the U.S. Department of the Interior Manual (516 DM). The proposed 
regulation change would have no environmental impact.
    Socioeconomic. The proposed regulation change would have no 
discernible socioeconomic impacts.
    Migratory bird populations. The proposed regulation change would 
not affect native migratory bird populations.
    Endangered and threatened species. The proposed regulation change 
would not affect endangered or threatened species or habitats important 
to them.

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 determined that there are no potential effects on Federally 
recognized Indian Tribes from the proposed regulation change. The 
proposed regulation change would not interfere with Tribes' abilities 
to manage themselves or their funds, or to regulate migratory bird 
activities on tribal lands.

Energy Supply, Distribution, or Use (Executive Order 13211)

    This proposed rule would not affect energy supplies, distribution, 
or use. This action would not be a significant energy action, and no 
Statement of Energy Effects is required.

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)). The proposed regulation 
change would not affect listed species.

Clarity of this Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

List of Subjects in 50 CFR Part 21

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

Proposed Regulation Promulgation

    For the reasons described in the preamble, we propose to amend 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 21--MIGRATORY BIRD PERMITS

    1. The authority 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.

    2. Amend Sec.  21.3 by revising the definition of ``hybrid'' to 
read as follows:


Sec.  21.3  Definitions.

* * * * *
    Hybrid means offspring of any two different species listed in Sec.  
10.13 of subchapter B of this chapter, and any progeny of those birds; 
or offspring of any bird of a species listed in Sec.  10.13 of 
subchapter B of this chapter and any bird of a species not listed in 
Sec.  10.13 of subchapter B of this chapter, and any progeny of those 
birds.
* * * * *

    Dated: October 28, 2011.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-28942 Filed 11-7-11; 8:45 a.m.]
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