[Federal Register Volume 76, Number 224 (Monday, November 21, 2011)]
[Rules and Regulations]
[Pages 71910-71912]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29829]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[FWS-R9-MB-2011-0088; 91200-1231-9BPP]
RIN 1018-AX98
Migratory Bird Permits; States Delegated Falconry Permitting
Authority; Technical Corrections to the Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The States of Indiana, Iowa, Nebraska, New Jersey, New Mexico,
North Carolina, Ohio, Oregon, Tennessee, Virginia, and Wyoming have
requested that we delegate permitting for falconry to the State, as
provided under our regulations. We have reviewed regulations and
supporting materials provided by these States, and have concluded that
their regulations comply with the Federal regulations. We change the
falconry regulations accordingly. This rule also makes certain
nonsubstantive editorial changes to correct minor errors and to clarify
the regulations.
DATES: This rule is effective January 1, 2012.
FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, (703) 358-1825.
SUPPLEMENTARY INFORMATION:
Background
We, the U.S. Fish and Wildlife Service, published a final rule in
the Federal Register on October 8, 2008 (73 FR 59448), to revise our
regulations governing falconry in the United States. These regulations
are found in title 50 of the Code of Federal Regulations (CFR) at Sec.
21.29. The regulations provide that, when a State meets the
requirements for operating under the regulations, falconry permitting
must be delegated to the State.
The States of Indiana, Iowa, Nebraska, New Jersey, New Mexico,
North Carolina, Ohio, Oregon, Tennessee, Virginia, and Wyoming have
submitted revised falconry regulations and supporting materials and
have requested to be allowed to operate under the revised Federal
regulations. We have reviewed the regulations administered by these
States and have determined that their regulations meet the requirements
of 50 CFR 21.29(b). According to the regulations at Sec. 21.29(b)(4),
we must issue a rule to add a State to the list at Sec. 21.29(b)(10)
of approved States with a falconry program. Therefore, we change the
Federal regulations accordingly, and a Federal permit will no longer be
required to practice falconry in the States of Indiana, Iowa, Nebraska,
New Jersey, New Mexico, North Carolina, Ohio, Oregon, Tennessee,
Virginia, and Wyoming beginning January 1, 2012.
In addition, to conform with the provisions of the Bald and Golden
Eagle Protection Act (16 U.S.C. 668-668c), we change wording in 50 CFR
21.29(a)(1)(ii) by replacing the word ``used'' with the words ``taken
from the wild.''
We also make three nonsubstantive improvements to the falconry
regulations in 50 CFR 21.29. Paragraph
[[Page 71911]]
(c)(1) is not needed because the information in it is presented in
paragraph (b)(10). We remove paragraph (c)(1). We also add paragraph
(d)(1)(ii)(B)(3) to specify that an eyas raptor need not be kept in an
indoor enclosure suitable for a flighted bird. Finally, we amend
paragraph (f)(12)(i) to replace ``flight feathers'' with the more
precise ``tail feathers and primary and secondary wing feathers.'' We
also make other nonsubstantive editorial changes to correct minor
errors and to clarify the regulations.
Administrative Procedure
In accordance with section 553 of the Administrative Procedure Act
(5 U.S.C. 551 et seq.), we are issuing this final rule without prior
opportunity for public comment. Under the regulations at 50 CFR
21.29(b)(1)(ii), the Director of the U.S. Fish and Wildlife Service
must determine if a State, Tribal, or territorial falconry permitting
program meets Federal requirements. When the Director makes this
determination, the Service is required by regulations at 50 CFR
21.29(b)(4) to publish a rule in the Federal Register adding the State,
Tribe, or territory to the list of those approved for allowing the
practice of falconry. On January 1st of the calendar year following
publication of the rule, the Service will terminate Federal falconry
permitting in any State certified under the regulations at 50 CFR
21.29.
This is a ministerial and nondiscretionary action that must be
enacted shortly to enable the subject States to assume all
responsibilities of falconry permitting by January 1, 2012, the
effective date of this regulatory amendment. Further, the relevant
regulation at 50 CFR 21.29 governing the transfer of permitting
authority to these States has already been subject to public notice and
comment procedures. Therefore, in accordance with 5 U.S.C.
553(b)(3)(B), we did not publish a proposed rule in regard to this
rulemaking action because, for good cause as stated above, we found
prior public notice and comment procedures to be unnecessary. In
addition, per 5 U.S.C. 553(d)(1), we are making this rule effective in
less than 30 days because this rule relieves a restriction: It
relinquishes Federal control of the falconry permitting program to the
approved States.
Required Determinations
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
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. This rule delegates authority to
States that have requested it, and those States have already changed
their falconry regulations. This rule does not change falconers' costs
for practicing their sport, nor does it affect businesses that provide
equipment or supplies for falconry.
Consequently, we certify that, because this 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 this regulations change.
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 in a negative way. A small government agency plan is not
required. The eight States affected by this rule applied for the
authority to issue permits for the practice of falconry.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. It is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
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. The States
being delegated authority to issue permits to conduct falconry have
requested that authority. No significant economic impacts are expected
to result from the State regulation of falconry.
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.
[[Page 71912]]
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, 2013. 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 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 changes to these
regulations, and determined that this rule does 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 Action
Socioeconomic. This action will not have discernible socioeconomic
impacts.
Raptor populations. This rule will not change the effects of
falconry on raptor populations. We have reviewed and approved the State
regulations.
Endangered and threatened species. This rule does not change
protections for endangered and threatened species.
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)). Delegating falconry
permitting authority to States with approved programs will not affect
threatened or endangered species or their habitats in the United
States.
List of Subjects in 50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
For the reasons stated in the preamble, we amend subpart C of part
21, subchapter B of chapter I, title 50 of the Code of Federal
Regulations, as follows:
PART 21--MIGRATORY BIRD PERMITS
0
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); Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-
108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
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2. Amend Sec. 21.29 as follows:
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a. In paragraph (a)(1)(ii), the second sentence, remove the word
``used'' and add in its place the words ``taken from the wild'';
0
b. In paragraph (b)(10)(i), remove the word ``or'' immediately before
the word ``Washington'', add a comma immediately following the word
``Washington'', and add, in alphabetical order to the list of States,
the words ``Indiana,'' ``Iowa,'' ``Nebraska,'' ``New Jersey,'' ``New
Mexico,'' ``North Carolina,'' ``Ohio,'' ``Oregon,'' ``Tennessee,''
``Virginia,'' and ``or Wyoming,'';
0
c. In paragraph (b)(10)(ii), remove the words ``Indiana,'' ``Iowa,''
``Nebraska,'' ``New Jersey,'' ``New Mexico,'' ``North Carolina,''
``Ohio,'' ``Oregon,'' ``Tennessee,'' ``Virginia,'' and ``or Wyoming,''
and add the word ``or'' immediately before the word ``Wisconsin,'';
0
d. Remove paragraph (c)(1) and redesignate paragraphs (c)(2) through
(c)(9) as paragraphs (c)(1) through (c)(8);
0
e. In newly redesignated paragraph (c)(2)(iii)(B), the second sentence,
remove the words ``paragraph (c)(3)(iv)'' and add in their place the
words ``paragraph (c)(2)(iv)'';
0
f. In newly redesignated paragraph (c)(5), the third sentence, remove
the words ``paragraph (c)(3)'' and add in their place the words
``paragraph (c)(2)'';
0
g. In paragraph (d)(1)(ii)(B)(2), revise the second sentence, and add
new paragraph (d)(1)(ii)(B)(3) to read as set forth below;
0
h. In paragraph (e)(3)(ii)(E), remove the paragraph designations (1),
(2), (3), (4), (5), (6), and (7) and add in their place the paragraph
designations (1), (2), (3), (4), (5), (6), and (7);
0
i. In paragraph (e)(3)(viii), the first sentence, remove the words
``paragraph (c)(3)(iv)'' and add in their place the words ``paragraph
(c)(2)(iv)''; and
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j. In paragraph (f)(12)(i), the first sentence, remove the words
``flight feathers'' and add in their place the words ``tail feathers
and primary and secondary wing feathers''.
Sec. 21.29 Falconry standards and falconry permitting.
* * * * *
(d) * * *
(1) * * *
(ii) * * *
(B) * * *
(2) * * * Other innovative housing systems are acceptable if they
provide the enclosed raptors with protection and allow them to maintain
healthy feathers.
(3) An eyas raptor may be kept in any suitable container or
enclosure until it is capable of flight.
* * * * *
Dated: November 4, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-29829 Filed 11-18-11; 8:45 am]
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