[Federal Register Volume 84, Number 83 (Tuesday, April 30, 2019)]
[Proposed Rules]
[Pages 18230-18231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08280]



Fish and Wildlife Service

50 CFR Chapter I

[Docket No. FWS-HQ-LE-2018-0078; FF09L00200-FX-LE18110900000]

Bald and Golden Eagle Protection Act and Migratory Bird Treaty 
Act; Religious Use of Feathers

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Petition for rulemaking; request for public comment.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received a petition for rulemaking, which asks the Service to revise 
the existing rules pertaining to the religious use of federally 
protected bird feathers. The petition is being published pursuant to 
the terms of a settlement agreement entered into in 2016 by the United 
States with McAllen Grace Brethren Church and the Becket Fund for 
Religious Liberty. Any changes to existing rules will be subject to a 
public comment period, and tribal consultation consistent with 
Executive Order 13175 and the Department of the Interior Policy on 
Consultation with Indian Tribes. The Service seeks comments on the 

DATES: Comments must be submitted on or before July 1, 2019.

ADDRESSES: Document availability: The petition and other materials 
mentioned in this document are available on the internet at http://www.regulations.gov in Docket No. FWS-HQ-LE-2018-0078. To review these 
materials in person, contact the person listed under FOR FURTHER 
    Comment submission: You may submit comments by one of the following 
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-HQ-
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-HQ-LE-2018-0078; Division of Policy, Performance, and 
Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg 
Pike, MS: BPHC, Falls Church, VA 22041-3803.
    See Public Comments below for additional information.

FOR FURTHER INFORMATION CONTACT: Edward Grace, Assistant Director, U.S. 
Fish and Wildlife Service, Office of Law Enforcement, 
[email protected], (703) 358-1949.


[[Page 18231]]


    On July 26, 2018, the Service received a petition for rulemaking 
from Pastor Robert Soto, the lead plaintiff in McAllen Grace Brethren 
Church v. Jewell, No. 7:07-cv-060 (S.D. Tex. June 3, 2016) (hereinafter 
``McAllen''), and the Becket Fund for Religious Liberty, asking the 
Service to revise its existing rules pertaining to the religious use of 
federally protected bird feathers and parts for Native Americans. The 
petitioners submitted the petition pursuant to paragraph 7 of the June 
10, 2016, settlement agreement between the McAllen Plaintiffs and the 
United States, which states:

    [The Secretary of the United States Department of the Interior 
(``Secretary'')] agrees to consider a petition under 43 CFR 14.2 
from Plaintiffs to modify existing regulations or issue new 
regulations concerning the possession of eagle feathers by persons 
who are not members of federally recognized tribes. In considering 
the Petition, [the Secretary] agrees to issue a notice in the 
Federal Register requesting public comment on the petition. [The 
Secretary] agrees to make a decision on the petition within two 
years from the date it is received.

Petitioned Actions

    The petition provides proposed regulatory text, which more broadly 
asks the Service to do four things:
    (1) ``Criminal possession ban: Petitioners propose that the 
Department [of the Interior] promulgate the Morton Policy as a 
regulation, with one modification: that the policy apply to all sincere 
religious believers who use federally protected feathers in their 
religious exercise.'' The ``Morton Policy'' is a Department of Justice 
enforcement policy that generally advises against prosecuting members 
of Federally Recognized Tribes who possess, travel with, or acquire or 
transfer without compensation eagle feathers. A Department of Justice 
memorandum concerning its application of the Morton Policy to Federally 
Recognized Tribes and a related 1975 press release by Secretary of the 
Interior Rogers C.B. Morton are available as indicated above in 
    (2) ``Protect Sincere Religious Believers: Members of a state or 
federally recognized Indian tribe, a Native American church, or other 
Native American religious organization should enjoy a presumption of 
sincerity; others should have the opportunity to demonstrate their 
sincerity in other ways.''
    (3) ``National Eagle Repository: The Department should reform the 
Repository by increasing its funding and staffing, working more closely 
with tribes and other stakeholders to improve efficiency, and adopting 
policies that will expand the overall supply of feathers. This will 
enable the Repository to better serve all sincere religious believers 
who use eagle feathers in their religious exercise.'' Note that the 
draft regulatory language suggested by the petitioners specifically 
requests access to the Repository for all sincere religious believers. 
(See paragraph d. of the petitioned regulatory text, pp. 44-45 of the 
    (4) ``Combat commercialization and increase enforcement: 
Petitioners propose that the Department [of the Interior] engage in 
government-to-government consultations with federally recognized tribes 
on specific measures to help Native Americans detect and report 
suspected illegal commercial activities involving protected feathers.'' 
(See pp. 3-4 of the petition).
    Note that some of these requests are for administrative action and 
are not directly addressed in the regulatory language the petitioners 
propose. The petitioners' proposed regulatory text can be found on pp. 
44-45 of the petition, available at http://www.regulations.gov in 
Docket No. FWS-HQ-LE-2018-0078.

Public Comments

    You may obtain the petition for rulemaking, and you must submit 
your comments and materials concerning this petition, by one of the 
methods described in ADDRESSES. The Service will not consider the 
petition's merits until after the comment period ends on the date set 
forth in DATES. If the Service decides that the petition has merit, we 
may begin a rulemaking proceeding. The Service will announce any action 
that we decide to take in the Federal Register.
    We will not accept comments sent by email or fax or to an address 
not listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment--including any personal 
identifying information, such as your address, telephone number, or 
email address--will be posted on the website. When you submit a 
comment, the system receives it immediately. However, the comment will 
not be publicly viewable until we post it, which might not occur until 
several days after submission. If you mail or hand-carry a hardcopy 
comment directly to us that includes personal 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. To ensure that all comments that we receive are publicly 
available, we will post all hardcopy comments on http://www.regulations.gov.

Administrative Procedure Act

    Under the Administrative Procedure Act, any person may petition for 
the issuance, amendment, or repeal of a rule (5 U.S.C. 553(e)). The 
petition will be given prompt consideration, and the petitioner will be 
notified promptly of action taken. A petition for rulemaking may be 
published in the Federal Register if the official responsible for 
acting on the petition determines that public comment may aid in 
consideration of the petition.

    Dated: March 25, 2019.
Andrea Travnicek,
Principal Deputy Assistant Secretary, Exercising the Authority of the 
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-08280 Filed 4-29-19; 8:45 am]