[Federal Register Volume 78, Number 212 (Friday, November 1, 2013)]
[Rules and Regulations]
[Pages 65576-65578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26069]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-R9-MB-2011-0060; FF09M21200-134-XMB123199BPP0]
RIN 1018-AX90


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), revise the 
definition of ``hybrid'' as it relates to birds protected under the 
Migratory Bird Treaty Act. We revise the definition to make it clear 
that it applies to all offspring of any species listed at 50 CFR 10.13.

DATES: This rule is effective on December 2, 2013.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, 703-358-1825.

SUPPLEMENTARY INFORMATION: 

I. Background

    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'' 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 interpretation of ``hybrid'' as applied to 
falconry and raptor propagation birds, in particular, where hybrids 
between two separate taxa when one or both include genetic material of 
a species listed in 50 CFR 10.13 have been regulated under the MBTA. 
This interpretation is consistent with the Sec.  10.12 definition of 
``migratory bird,'' which is 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.
    The definition at 50 CFR 21.3 also differs from the definition of 
``hybrid'' under the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora, which requires CITES documentation for 
import or export of all raptors, including any resulting from a cross 
of genetic material between two separate taxa when one or both are 
listed under the CITES appendices (CITES, 50 CFR 23.5).
    ``Hybrid'' was not defined under the MBTA prior to 2008, when the 
falconry regulations were substantially revised (73 FR 59448-59477, 
October 8, 2008). At that time, we inadvertently defined ``hybrid'' in 
50 CFR 21.3 in a manner that conflicts with the use of the term in 
other regulations.
    To ensure that migratory birds are protected under our regulations 
implementing the MBTA, on November 8, 2011, we proposed a change to the 
definition of ``hybrid'' at 50 CFR 21.3 (76 FR 69223-69225). The change 
was intended to make it clear that the offspring of any species listed 
at 50 CFR 10.13 are protected under the MBTA, whether or not additional 
species that are not protected under the MBTA have contributed to its 
genetics, and regardless of how many generations separate such birds 
from a species protected by the MBTA. This change will also make our 
regulations consistent with our long-standing practice.

II. Comments on the Proposed Rule

    The most in-depth comments on the proposed rule were based on 
assessment of the proposal in light of the 2004 Migratory Bird Treaty 
Reform Act (MBTRA, Pub. L. 108-447, December 8, 2004). Commenters 
asserted that the proposed definition was in conflict with the 
provisions of the MBTRA. The MBTRA amended 16 U.S.C. 703, stating that 
the Migratory Bird Treaty Act (MBTA, 16 U.S.C. 703-712) ``applies only 
to migratory bird species that are native to the United States or its 
territories.''
    The MBTRA states that ``a migratory bird species that occurs in the 
United States or its territories solely as a result of intentional or 
unintentional human-assisted introduction shall not be considered 
native to the United States or its territories.'' The MBTRA was 
intended to address problems of human-introduced bird species, such as 
the mute swan. These species often become established in the wild and 
conflict with native wildlife. The MBTRA refers throughout only to 
migratory bird ``species.'' It does not address hybrids, including 
those intentionally created in captivity by man. Therefore, the MBTRA 
does not apply to this regulations change.
    Lastly, we conclude that the MBTRA does not affect the protection 
of hybrid birds. The MBTRA was precipitated by litigation forcing the 
Service to protect the mute swan, a nonnative species introduced 
through human intervention. It was intended to exclude such nonnative, 
human-introduced bird species from protection under the MBTA. We find 
nothing in the legislative history to show that Congress intended the 
MBTRA to have the effect of excluding hybrids of native species from 
the protection of the MBTA.
    It was also argued that the proposed definition change used the 
Andrus v. Allard decision (444 U.S. 51, 1979) and ``is an attempt to 
justify the expansion of FWS authority.'' In the unanimous decision in 
that court case, the Supreme Court ruled that imposition of a 
restriction on commercial use of migratory birds or migratory bird 
parts was not a taking of private property. Many activities with 
migratory birds are governed by regulations, and may not be conducted 
without permits. This does not mean that the government has taken 
private property, nor does it mean that the Service is attempting to 
expand its authority in this case. The definition of ``hybrid'' we are 
codifying is already in use by the Service in other regulations.
    One commenter asserted that ``Most hybrid raptors are more easily 
distinguished from native species than any of the above species are 
from each other. In addition, wildlife officials have access to the 
trained eyes of experts at museums, falconers and raptor breeders if 
the possession or importation of any raptor is in question.''
    We disagree with this argument. For enforcement of the MBTA, 
identification of the birds held by permittees is vital to State and 
Federal law enforcement officers. Yet, identification of hybrids is 
difficult. Eastham and Nicholls (2005, Morphometric analysis of large 
Falco species and their hybrids with implications for conservation, 
Journal of Raptor Research 39:386-393) concluded that ``phenotypic 
characteristics are not reliable for identification of such hybrids 
[gyrfalcon (Falco rusticolus) x peregrine (Falco peregrinus), gyrfalcon 
x saker falcon (Falco cherrug), peregrine x saker], and for legal 
purposes.'' Thus, hybrids present challenges to law enforcement 
officers in the field. Experts at museums, falconers, and propagators 
may be available to assist

[[Page 65577]]

law enforcement officers. However, import of hybrids is of less concern 
than is identification of hybrids produced by propagators here in the 
U.S. And, in most cases it may be difficult for a law enforcement 
officer to get prompt assistance from anyone for identification of 
raptors while conducting inspections or field investigations.
    One commenter asserted that ``The point made in the conclusion of 
this FWS proposal, that law enforcement efforts would be more 
burdensome due to the difficulty in identifying purebred versus hybrid 
raptors, is irrelevant. The rights and liberties of citizens are of 
greater importance than law enforcement convenience given the fact that 
the very purpose of law enforcement efforts is to protect the rights 
and liberties of citizens.''
    Though we agree about the importance of the rights of citizens, we 
disagree that the law enforcement difficulties are irrelevant. The 
ability to enforce the MBTA is critical to the Service's conservation 
mission. If the provisions of the MBTA cannot be enforced for some 
activities, such as propagation, purchase, sale, and barter, we might 
not be able to allow those activities. Hybrids of MBTA species often 
are difficult to distinguish from one of the parent species. Because 
hybrids may look so much like wild or pure-bred birds, enforcing 
provisions of the MBTA could be impossible.
    If hybrids of MBTA species are not regulated under the MBTA, we 
cannot require that they be banded. Therefore, law enforcement officers 
would have no simple means to identify them or their origins, and could 
not practicably enforce the MBTA.
    Some commenters stated that we decided to revise the definition 
because hybrid raptors ``may pose a threat to native raptor populations 
through competition or crossbreeding.'' We said in our proposed rule 
that hybrids may pose such a risk, not that we believe this risk is 
significant, though concern about this possible problem has been 
expressed to us. However, if hybrid raptors are not protected under the 
MBTA, the question likely could not ever be assessed because we would 
not be able to require that they be identified.
    Several commenters asserted that governance of hybrid raptors is 
the responsibility of the States, not of the Federal Government. 
Enforcement of the MBTA is a Federal responsibility, and identification 
of hybrid birds is necessary for enforcement and for assuring 
compliance with the provisions of the MBTA treaties.
    The U.S. Department of Agriculture's Animal and Plant Health 
Inspection Service's Wildlife Services requested that the final rule 
include ``an explicit statement that the definition of ``hybrid'' does 
not extend to species other than migratory birds protected under the 
MBTA. A statement of this sort, in addition to the existing statements 
that the rule applies to 50 CFR 10.13 (list of migratory birds), would 
clarify the definition's application to migratory birds only. Without 
this clarification, it could be construed that the definition extends 
to CITES-protected canids and other species groups.''
    The definition of hybrid in this rule is being codified at Sec.  
21.3, which is the section of regulatory definitions that apply only to 
50 CFR part 21 (migratory bird permits), and to bald eagles (Haliaeetus 
leucocephalus) and golden eagles (Aquila chrysaetos) as affected by 
regulations in part 21. Therefore, we see no need to add the statement 
requested by the commenter.

III. Changes From the Proposed Rule

    On November 8, 2011, at 76 FR 69223, we proposed a definition of 
hybrid that read, ``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.'' In this rule, we are adopting a definition with 
different wording: ``Hybrid means any bird that results from a cross of 
genetic material between two separate taxa when one or both are listed 
at 50 CFR 10.13, and any progeny of those birds.'' We are adopting this 
different wording in this final rule because comments from the public 
convinced us that the definition should be more consistent with the 
language used elsewhere in our regulations and should be easier to 
understand.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563).

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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 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. There will be no costs associated 
with this regulation change because the Service's Office of Law 
Enforcement has treated hybrids as protected. We have determined that 
because this regulation change will 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 will not have a significant impact on a substantial number of small 
entities.
    a. This rule will not have an annual effect on the economy of $100 
million or more.
    b. This rule will 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 will not have significant adverse effects on 
competition, employment, investment, productivity,

[[Page 65578]]

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

Takings

    This 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 under Executive Order 13132. It 
will not interfere with the States' abilities to manage themselves or 
their funds. No significant economic impacts are expected to result 
from the 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 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 rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. and Part 516 of 
the U.S. Department of the Interior Manual (516 DM). The regulation 
change will have no environmental impact.
    Socioeconomic. The regulation change will have no discernible 
socioeconomic impacts.
    Migratory bird populations. The regulation change will not affect 
native migratory bird populations.
    Endangered and threatened species. The regulation change will 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 regulation change. The regulation 
change will 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 rule will not affect energy supplies, distribution, or use. 
This action will 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 regulation change 
will not affect listed species.

List of Subjects in 50 CFR Part 21

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

Regulation Promulgation

    For the reasons described in the preamble, we amend subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 21--AMENDED

0
1. The authority citation for part 21 continues to read as follows:

    Authority:  16 U.S.C. 703-712.



0
2. Amend Sec.  21.3 by revising the definition of ``hybrid'' to read as 
follows:


Sec.  21.3  Definitions.

* * * * *
    Hybrid means any bird that results from a cross of genetic material 
between two separate taxa when one or both are listed at 50 CFR 10.13, 
and any progeny of those birds.
* * * * *

    Dated: October 21, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-26069 Filed 10-31-13; 8:45 am]
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