04-27775. Migratory Bird Permits; Determination That the State of Connecticut Meets Federal Falconry Standards

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We propose to add the State of Connecticut to the list of States whose falconry laws meet or exceed Federal falconry standards. We have reviewed the Connecticut falconry regulations and have determined that they are in compliance with the regulations governing falconry. This action will enable citizens to apply for Federal and State falconry permits and to practice falconry in Connecticut.

DATES:

We must receive comments on this proposed rule no later than January 19, 2005.

ADDRESSES:

You may submit comments, identified by RIN 1018-AT63, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Agency Web Site: http://migratorybirds.fws.gov. Follow the links to submit a comment.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-4107, Arlington, Virginia 22203-1610. You may inspect comments during normal business hours at the same address.
• Hand Delivery/Courier: Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610.

Instructions: All submissions received must include Regulatory Information Number (RIN) 1018-AT63 at the beginning. All comments received, including any personal information provided, will be available for public inspection at the above (“Hand Delivery/Courier”) address. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Brian Millsap, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-1714; Dr. George Allen, Wildlife Biologist, 703-358-1825; or Diane Pence, Regional Migratory Bird Coordinator, Hadley, Massachusetts, 413-253-8577.

SUPPLEMENTARY INFORMATION:

Background

The Fish and Wildlife Service is the Federal agency with the primary responsibility for managing migratory birds. Our authority is based on the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.), which implements conventions with Great Britain (for Canada), Mexico, Japan, and the Soviet Union (Russia). Raptors (birds of prey) are afforded Federal protection by the 1972 amendment to the Convention for the Protection of Migratory Birds and Game Animals, February 7, 1936, United States—Mexico, as amended; the Convention between the United States and Japan for the Protection of Migratory Birds in Danger of Extinction and Their Environment, September 19, 1974; and the Convention Between the United States of America and the Union of Soviet Socialist Republics (Russia) Concerning the Conservation of Migratory Birds and Their Environment, November 26, 1976.

The taking and possession of raptors for falconry are strictly prohibited except as permitted under regulations implementing the MBTA. Raptors also may be protected by State regulations. Regulations governing the issuance of permits for migratory birds are authorized by the MBTA and subsequent regulations. They are in title 50, Code of Federal Regulations, parts 10, 13, 21, and (for eagle falconry) 22.

Regulations in 50 CFR part 21 provide for review and approval of State falconry laws by the Fish and Wildlife Service. A list of States whose falconry laws are approved by the Service is found in 50 CFR 21.29(k). The practice of falconry is authorized in those States. As provided in 50 CFR 21.29(a) and (c), the Director has reviewed certified copies of the falconry regulations adopted by the State of Connecticut and has determined that they meet or exceed Federal falconry standards. Federal falconry standards contained in 50 CFR 21.29(d) through (i) include permit requirements, classes of permits, examination procedures, facilities and equipment standards, raptor marking restrictions, and raptor taking restrictions. Connecticut regulations also meet or exceed all restrictions or conditions found in 50 CFR 21.29(j), which include requirements on the number, species, acquisition, and marking of raptors. Therefore, we are proposing that the State of Connecticut be listed under § 21.29(k) as a State that meets Federal falconry standards. Inclusion of Connecticut in this list would eliminate the current restriction that prohibits falconry in that State.

Why Is This Rulemaking Needed?

The need for the proposed changes to 50 CFR 21.29(k) arose from the desire of the State of Connecticut to institute a falconry program for the benefit of citizens interested in the sport of falconry. Accordingly, the State promulgated regulations that we have concluded meet the Federal requirements protecting migratory birds. The proposed changes to 50 CFR 21.29(k) are necessary to allow persons in the State of Connecticut to practice falconry under the regulations the State submitted for approval.

Changes in the Regulations Governing Falconry

We propose to add the State of Connecticut to the list of States with approved falconry regulations that will enable citizens to practice falconry in the State.

Clarity of This Regulation. Executive Order 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 “§ ” and a numbered heading; for example, “§ 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 [e-mail].

Regulatory Planning and Review. In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action.

a. This rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. This rule will affect a limited number of potential falconers in Connecticut.

b. This rule will not create inconsistencies with other agencies' actions. The rule deals solely with governance of falconry in Connecticut. No other Federal agency has any role in regulating falconry.

c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. There are no entitlements, grants, user fees, or loan programs associated with the regulation of falconry.

d. This rule will not raise novel legal or policy issues. This rule simply adds Connecticut to the list of States with approved falconry regulations.

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), 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.

Small Business Regulatory Enforcement Fairness Act. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a 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 change will merely approve the falconry regulations for Connecticut and allow the practice of falconry there. This determination is based on the fact that we are simply adding one State to the list of States with approved falconry regulations. This rule will have no significant economic effect on a substantial number of small entities, and no regulatory flexibility analysis is required.

This rule is not a major rule under SBREFA, 5 U.S.C. 804(2).

a. This rule does not have an annual effect on the economy of $100 million or more. Approval of the Connecticut regulations will have only a very small effect on the economy. We estimate that 20 individuals would obtain falconry permits as a result of this rule, and many of the expenditures of those permittees would accrue to small businesses. The maximum number of birds allowed by a falconer is three, so the maximum number of birds likely to be possessed is 60. Some birds would be taken from the wild, but others could be purchased. Using one of the more expensive birds, the northern goshawk, as an estimate, the cost to procure a single bird is less than $5,000, which, with an upper limit of 60 birds, translates into $300,000. Expenditures for building facilities would be less than $32,000 for 60 birds, and for care and feeding less than $60,000. These expenditures, totaling less than $400,000, represent an upper limit of potential economic impact from the addition of Connecticut to the list of approved States.

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.).

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.

Takings. In accordance with Executive Order 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 Executive Order 13132. It will not interfere with the State's ability to manage itself or its funds.

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. We examined these regulations under the Paperwork Reduction Act of 1995. OMB has approved the information collection requirements of the Migratory Bird Permits Program and assigned clearance number 1018-0022, which expires 7/31/2007. This regulation does not change or add to the approved information collection. Information from the collection is used to document take of wild raptors for use in falconry and to document transfers of birds 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 have analyzed this rule in accordance with the criteria of the National Environmental Policy Act (NEPA) and Part 516 of the Department of the Interior Manual (DM). This rule does not constitute a major Federal action significantly affecting the quality of the human environment, and does not require the preparation of an Environmental Impact Statement or an Environmental Assessment (EA). We prepared an EA in July 1988 to support establishment of simpler, less restrictive regulations governing the use of most raptors in falconry. You can obtain a copy of the EA by contacting us at the address in the ADDRESSES section. This rule simply adds Connecticut to the list of States with approved falconry regulations. In the last five years we have added several States to the list of those with approved falconry regulations. Those additions generated few public or agency comments. We view this action as a routine action with precedent. Therefore, the action is categorically excluded under Department of the Interior NEPA procedures as an “amendment to an approved action when such changes have no or minor potential environmental impact” (516 DM 6, Appendix 1.4 (A)(1)).

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 there are no potential effects. This rule will not interfere with the Tribes' ability to manage themselves or their funds or to regulate falconry on tribal lands.

Energy Supply, Distribution or Use (Executive Order 13211). On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 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 Executive Order 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.

Are There Environmental Consequences of the Proposed Action?

The environmental impacts of this action are extremely limited.

Socioeconomic. We do not expect this action to have discernible socioeconomic impacts.

Raptor populations. This rule does not significantly alter the conduct of falconry in the United States. We believe that there only about 10 falconers or individuals interested in being falconers in Connecticut, and take of raptors for falconry in the State will be prohibited by the State falconry regulations. Therefore, this rule will have a negligible effect on raptor populations.

Endangered and Threatened Species. The regulation change will not affect threatened or endangered species in Connecticut for the reasons set forth below.

Is This Rule in Compliance With Endangered Species Act Requirements?

Yes. 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 Act.” 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 * * * ” The Division of Threatened and Endangered Species concurred with our finding that the revised regulations will not affect listed species.

Author. The author of this rulemaking is Dr. George T. Allen, U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 4401 North Fairfax Drive, Mail Stop MBSP-4107, Arlington, Virginia 22203-1610.

Public Participation. You may submit written comments on this rule to the location identified in the ADDRESSES section, or you may submit electronic comments to any of the electronic comments addresses listed in the ADDRESSES section. We must receive your comments before the date listed in the DATES section. All comments will become part of the Administrative Record for the review of the approval. When submitting electronic or written comments, refer to the file number RIN 1018-AT63.

When submitting your electronic comment, please include your name and return address in your message, identify it as comments on the falconry regulations change, and submit your message as an ASCII file. Do not use special characters or any encryption. If you do not receive a confirmation from the system that we have received your electronic comments, you can contact us directly at 703-358-1714.

When submitting written comments, please include your name and return address in your letter and identify it as comments on the falconry regulations change. To facilitate our compilation of the Administrative Record for this action, you must submit written comments on 81/2 inch by 11 inch paper.

All comments on the proposed rule will be available for public inspection during normal business hours at Room 4091 at the Fish and Wildlife Service, Division of Migratory Bird Management, 4501 North Fairfax Drive, Arlington, Virginia 22203-1610. The complete file for this proposed rule is available, by appointment, during normal business hours at the same address. You may call 703-358-1825 to make an appointment to view the files.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. An individual respondent may request that we withhold his or her home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. We will not consider anonymous comments.

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 propose to amend part 21, subpart C, subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below:

PART 21—MIGRATORY BIRD PERMITS

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

Authority: 16 U.S.C. 703-712; Pub. L. 106-108; 16 U.S.C. 668a.

§ 21.29

[Amended]

2. Amend § 21.29 by adding to paragraph (k) the word “Connecticut,” between the words “*Colorado,” and “*Delaware,”.

Dated: December 10, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.