[Federal Register Volume 64, Number 180 (Friday, September 17, 1999)]
[Rules and Regulations]
[Pages 50467-50474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24282]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 22
RIN 1018-AB81
Eagle Transportation Permits for American Indians and Public
Institutions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This final rule revises the general eagle permit restrictions
applicable to American Indians and public institutions. This final
regulation provides for the issuance of eagle permits for
transportation of lawfully possessed eagle parts into or out of the
United States only when the eagle parts have a religious purpose, or
when a public institution transports eagle parts for scientific or
exhibition purposes. In these cases, we will require that the eagle
parts be returned to the country of origin. We make this revision to
address concerns expressed by American Indians and public institutions
who have sought our permission to allow international travel of
lawfully possessed eagle parts or items containing eagle parts. We have
carefully considered the needs of science and education, the religious
protections guaranteed by the United States Constitution, and the
recommendations made by those responding to the proposed rule providing
for Eagle Transportation Permits for American Indians and Public
Institutions published Thursday, June 16, 1994 (Federal Register (59 FR
30892)).
EFFECTIVE DATE: This rule is effective September 17, 1999.
ADDRESSES: Comments received are available for public inspection
between the hours of 8 a.m. and 4 p.m., Monday through Friday, in Room
500, Arlington Square Building, 4401 N. Fairfax Drive, Arlington,
Virginia 22203-3247, (703) 358-1949.
FOR INFORMATION CONTACT: Kevin R. Adams, Chief, U.S. Fish and Wildlife
Service, Office of Law Enforcement, (703) 358-1949.
SUPPLEMENTARY INFORMATION:
Background
We, the U.S. Fish and Wildlife Service, will issue permits of
limited duration and conditions to American Indians and public
institutions for the transportation into or out of the United States of
lawfully possessed dead bald eagles (Haliaeetus leucocephalus) or dead
golden eagles (Aquila Chrysaetos), or their parts, nests, or dead eggs.
The movement of dead eagles, their parts ,nests, or dead eggs across
the border of the United States without a permit will still be
considered an import or export and will be unlawful. We will not issue
a permit under this part that authorizes the transportation into or out
of the United Stats of any live bald or golden eagles, or any live eggs
of these birds. We will not issue permits for one of these live eagle
species if any population of that species is listed as endangered under
the Endangered Species Act.
We have the authority and responsibility for enforcing the
provisions of the Bald and Golden Eagle Protection Act (Eagle Act), 16
U.S.C. 668-668d, and related regulations in 50 CFR part 22. The Act
prohibits certain activities including the import and export of bald or
golden eagles on their parts, nests, or eggs. The Act also authorizes
us to issue permits for otherwise prohibited activities, including
transporting bald and golden eagles, or their parts, nests, or eggs.
Since the adoption of the Eagle Act, its amendments, and its
regulations, we have received requests to allow the transportation of
dead bald and golden eagles, their parts, nests, or dead eggs into or
out of the United States for scientific or exhibition purposes or for
religious use by American Indian tribes. There were, however, no
provisions within our regulations to allow such activity and the
scientific and educational community and the Indian tribes effectively
were prevented from crossing international borders with such items. We
recognize that this situation creates some problems both in the sharing
of science and in the exercise of religious freedoms. We intend to
allow American Indians meeting the certification requirements in
Sec. 22.22 and public scientific or educational institutions to
transport into or out of the United States on a temporary basis dead
bald and golden eagles, their parts, nests, or dead eggs. We do not
intend this ``transportation into or out of the United States''
provision to apply to members of foreign aboriginal, indigenous, or
other tribal groups. Those individuals are unable to meet the tribal
certification requirements applying to a member of an Indian entity
recognized and eligible to receive services from the United States
Bureau of Indian Affairs listed pursuant to 25 U.S.C. 479a-1.
In changing the applicable regulations, we strive to eliminate
unreasonable restrictions placed on the scientific community and
American Indians while continuing to prevent any adverse effect on
eagle populations. By allowing the transportation of dead bald and
golden eagles, or their parts, nests, or dead eggs into or out of the
United States, we believe that both of these goals can satisfactorily
be met. Other rationales for these changes are: To update part 22 to
reflect official title changes of our employees, to correct minor
typographical errors, and to incorporate several changes suggested by
respondents.
[[Page 50468]]
In Secs. 22.1, 22.2, 22.11, 22.21, and 22.22, we add the term
``transportation into or out of the United States'' to existing wording
to allow dead bald and golden eagles, or their parts, nests, or dead
eggs to be moved across United States borders under strict guidelines.
We will not issue a permit under this part that authorizes the
transportation into or out of the United States of any live bald and
golden eagles, or any live eggs of these birds. We modified Sec. 22.3
to define ``Transportation into or out of the United States,'' as well
as Secs. 22.21 and 22.22 to provide for the issuance of one permit to
meet the requirements of several laws under our jurisdiction and to
identify the offices responsible for permit application review.
Sections 22.21 and 22.22 are further clarified to require a showing of
lawful acquisition and possession prior to granting a permit to
transport eagle parts outside the United States and, with respect to
Sec. 22.22, to impose time limits on permits for transportation of dead
bald and golden eagles, or their nests, or dead eggs into or out of the
United States. We correct typographical errors in Secs. 22.11 and
22.12. In addition, we are modifying Secs. 22.21, 22.22, 22.23, and
22.25 to direct permit applications and required reports to the
appropriate Regional Director--Attention: Migratory Bird Permit Office.
In Sec. 22.11, we add wording to clarify that conditions included in a
permit are enforceable as terms of a permit. Finally, we are revising
Sec. 22.22 to clarify certification requirements for members of Indian
tribes and to delete paragraph (a)(6), which required a separate
certification from an official of the individual's religious group.
Although the latter change was not specifically addressed in the
proposed rule, we do not view it as significant deviation from the
proposed rule. The certification by a religious official is largely
duplicative of the separate requirements of tribal membership
certification and the individual's statement on the application form
itself, under penalty of perjury, of the individual's religious need
for the permit. We believe the sole effect of this change will be to
reduce the administrative burden placed on individuals.
Summary of Comments and Information Received
We received six written comments to the proposed rule: One from a
Confederation of Tribes; two from scientific associations; two from
representatives of Federal government agencies; and one from a private
citizen. We have carefully considered all comments received in response
to the June 16, 1994, Federal Register Notice proposing these changes
to part 22.
General Comments and Responses
We received a number of suggestions for changes that we found
suitable for inclusion in the regulations. Many of these suggestions
were incorporated into this revision of the regulation and the
discussions follow.
Comment
A representative of a scientific association expressed support of
the proposed rule. This individual commended our efforts in authorizing
permits to transport eagle specimens into or out of the United States
for scientific and exhibition purposes. The person explained that
natural history museums have reason to transport such materials in the
ordinary course of their work when mounting exhibits or transacting
loans with other institutions for scientific study. It was also noted
that until now scientists could not transport exhibits when eagles or
eagle parts were involved. It was noted that for the first time since
adoption of the Eagle Act, it will be possible for public institutions
to borrow specimens from institutions in other countries and to send
abroad exhibits containing eagle parts for educational purposes.
Response
We support the contention that the changes to be made in the
regulations are a positive development. We also appreciate the
assurance that allowing the transportation of bald and golden eagle
specimens into or out of the United States will serve the public
interest without harming wildlife resources. We agree that this change
is a positive response to what generally is recognized as a real need
in the science and education fields. It is or intent, by permitting
public institutions to make such transportation, to promote the sharing
of information, specimens, and exhibits within the international
community for educational and scientific purposes whenever possible
without harming wildlife resources.
Comment
Several comments expressed concern that the Endangered Species Act
(ESA), the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES), and the Migratory Bird Treaty Act (MBTA)
have requirements affecting both bald and golden eagles. It was noted
that we require qualified individuals wishing to transport bald or
golden eagle parts into or out of the United States to obtain
additional permits under regulations implementing the ESA, MBTA, and
CITES. It was also noted that we issue these different permits from
separate offices. One suggestion was that a single office should issue
all permits, and one permit meeting the requirements of all three Acts
would simplify the process for the applicant and for us. Another
suggestion was that any permit issued in this fashion should include
language stating the requirements being met.
Response
We agree that having a single document meeting the requirements of
the several laws benefits both the individual or public institution and
us. We currently authorize a single permit under 50 CFR 13.1. In
addition, under 50 CFR 21.2(b), we do not require part 21 permits for
bald and golden eagles except for banding or marking. However, we will
continue to require a part 21 permit if an artifact containing eagle
feathers also contains feathers of a non-eagle species protected by the
MBTA. This provision of part 21 is not changed in this final rule.
We are taking additional steps to simplify permitting requirements.
We published a Special Rule under the Endangered Species Act for bald
eagles in the July 12, 1995 Federal Register (60 FR 36000), in which we
changed 50 CFR 17.41(a)(1). The final rule states that ``any permit
issued under Sec. 21.22 or part 22, will be deemed to satisfy all
requirements of Sec. 17.31 (prohibitions) and 17.32 (permits) for that
authorized activity and a second permit will not be required under
Sec. 17.32.'' In this final rule we amend Sec. 22.21, for the purpose
of uniformity, to acceptance issuance of a single permit application
that satisfies permit requirements of the MBTA, the Eagle Act, CITES,
and the ESA. However, issuance of a single permit may not always be
possible. Applicants for permits to transport eagle parts into or out
of the United States under the provisions of Sec. 22.21, permits for
scientific or exhibition purposes, must submit applications to the
Office of Management Authority in order to comply with the relevant
sections of part 23 and CITES, and they must demonstrate lawful
possession. Since CITES requires that original permits be surrendered
upon import, the CITES permit could not authorize possession.
Possession requires a separate permit issued by the Migratory Bird
Permit Office in a respective Regional Office that is retained by the
applicant.
American Indians applying for permits for the transportation into
or out of the United States under the Indian religious purposes
section, 22.22, will submit a single application to the
[[Page 50469]]
appropriate Regional Director--Attention: Migratory Bird Permit Office,
because applicants must initially be certified as meeting the enrolled
tribal member criteria established in this section. The Migratory Bird
permit office will then forward the application to the Office of
Management Authority for issuance of a CITES permit. This single permit
application must also contain all the necessary information for
issuance of a CITES permit.
Comment
One comment from an individual representing the interests of a
Confederation of Tribes noted that because their Tribes are near the
border with Canada, families frequently must travel between the two
countries to maintain tribal and family relationships with members
living in Canada. The individual also noted that tribal members often
will possess eagle parts when crossing the border. The individual
suggested that we delegate permitting authority to possess and
transport eagle parts, especially miscellaneous feathers, to the
Tribes. This person was of the opinion that the proposed transport
permit requirements and the Federal permit process are too cumbersome.
Response
We recognize that the process of obtaining permits can be a burden
especially for those individuals unfamiliar with the procedures or the
reasons why such procedures are necessary. Under 16 U.S.C. 668a, we may
issue permits only ``Whenever, after investigation, the Secretary of
the Interior shall determine that it is compatible with the
preservation of the bald eagle or the golden eagle * * *.'' We must
comply with the duties placed on us by the Eagle Act, and we have no
plans to delegate our permitting responsibilities. However, we
attempted to eliminate any unintended or unreasonable permit burden in
this final rule.
Comment
One representative of a Federal agency suggested that the proposed
regulation should consider repatriation of objects containing bald or
golden eagle parts to Indian Tribes or lineal descendants as mandated
by the Native American Graves Protection and Repatriation Act (NAGPRA),
25 U.S.C. 3001 et seq. The individual noted that although
transportation of most repatriated items occurs within the United
States, foreign museums or persons also send items containing bald or
golden eagle parts to the United States for repatriation.
Response
We acknowledge the concerns expressed by this individual. NAGPRA
presents special circumstances that will ultimately have to be dealt
with on a case by case basis; however, we expect this revision to
reduce the problem of transporting items subject to the Eagle Act into
the United States for repatriation under NAGPRA. One of the conditions
of permits issued under this final rule authorizing transportation into
the United States is that the permitted item or items do not change
ownership. According to the statutory provisions found in 25 U.S.C.
3002, ``funerary objects'' subject to repatriation under NAGPRA are
owned or controlled by the lineal descendants of a Native American or
the Indian tribe. Using this definition, a ``change of ownership''
would not apply to these objects; therefore, the amendment could allow
us to issue a permit authorizing transportation into the United States
for religious purposes. Although incidents involving repatriation from
outside the United States may be few, we intend to make every effort to
assist in implementing NAGPRA rules that fall within our jurisdiction.
Comment
One individual noted several reasons for opposing the proposed
revision of part 22. The first reason was that the Eagle Act prohibits
the import or export of bald and golden eagles. The second reason was
that the Eagle Act also explicitly prohibits the taking, possession,
sale, purchase, barter, or transport of bald and golden eagles.
This individual also noted that because the Eagle Act prohibits
transport and import or export, the latter two terms are not meant to
be included within the meaning of ``Transportation.''
Response
With respect to this individual's concerns on the Eagle Act
prohibiting import and export, we regard this assertion as correct as
it pertains to ``import'' or ``export.'' We point out that the
statutory authority in 16 U.S.C. 668a allows the Secretary of the
Interior (Secretary) to issue permits for activities prohibited by the
Eagle Act. This authority, delegated to us by the Secretary, provides
for our oversight and enforcement and does not require Congressional
administration of our day-to-day responsibilities. In making this
change, we do not intend to include activities defined as ``import'' or
``export'' within the meaning of ``transport.'' Our intent is to
distinguish between import/export activities and ``transport into or
out of the United States'' for very specific purposes as it applies to
the Eagle Act. The intent of this change is to remove any unreasonable
and unintended regulatory restrictions previously imposed upon American
Indians and public institutions. By allowing transportation into or out
of the United States on a restricted basis, we are ensuring that bald
and golden eagle populations are not harmed and lawfully possessed
eagle parts are utilized in ways consistent with the intent of the law.
Comment
The same individual also noted that the Act specifically authorizes
``the taking, possession, and transportation of specimens * * * for
scientific or exhibition purposes by public museums, scientific
societies and zoological parks, or for the religious purposes of Indian
tribes, * * *'' but as the individual noted, nowhere is there any
provision for permits or other relief from the specific prohibitions of
import and export of bald and golden eagles or relevant specimens
thereof.
This individual expressed the opinion that Congress specified the
acts it intended to prohibit and those for which it intended to provide
exceptions and believes Congress intended to prohibit import/export of
eagles because those activities are not included within the specified
exceptions. The individual also expressed the point of view that
Congress did not intend ``import'' or ``export'' to be included within
the meaning of the term ``transportation,'' nor did it intend to
provide any exception for ``import'' or ``export'' either directly or
within the context of the term ``transport.'' The individual asserted
that, in regards to the Indian religious right to ``import'' or
``export'' eagles, Congress intended to abrogate any such Indian Treaty
rights that may have existed.
Response
We do not agree with this person's interpretation of the Act. The
Act, as codified in 16 U.S.C. 668a, expressly authorizes the Secretary
to issue permits for certain activities. One of the permitted
activities is transportation for scientific or exhibition purposes;
another is transportation for the religious purposes of Indian tribes.
We interpret the term ``transportation'' to include the transportation
of bald and golden eagles, or their parts, nests, or eggs within the
United States or, under limited circumstances, the
[[Page 50470]]
transportation of dead bald and golden eagles, or their parts, nests,
or dead eggs into and out of the United States on a temporary basis. As
previously stated, we will not issue a permit under this part that
authorizes the transportation into or out of the United States of any
live bald or golden eagles or any live eggs of these birds. We also
disagree with this individual's interpretation of the intent of
Congress with respect to the Eagle Act. It is not our position that the
terms ``import'' or ``export,'' as used in the Eagle Act, are included
in the term ``transportation.'' Rather, it is our position that
Congress intended ``import'' or ``export,'' as used in the Act, to
refer to activities of a permanent nature with a commercial component
and that the Eagle Act allows the Secretary to permit the temporary and
conditional transportation of eagle parts across national borders for
activities covered by this proposal. Regardless of what rights may or
may not have been abrogated by the Eagle Act, the transportation
activities authorized in this final rule are not importations or
exportations for the purposes of the Eagle Act.
Comment
The same individual additionally noted that the term ``import,'' as
defined in the ESA, is also applicable to restrictions on bald eagles.
The ESA, as the individual noted, defines ``import'' as ``to land on,
bring into, or introduce into, or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the United
States.'' Therefore, in this person's opinion, it was unreasonable to
expect an individual to understand how actions proposed to be included
within the term ``transportation into or out of the United States'' for
purposes of the Eagle Act would be treated as ``imports'' or
``exports'' under other treaties, statutes, or regulations. The person
further expressed the point of view that neither administrative
agencies nor the courts are free to substitute their own standards for
standards imposed by statute. Another characterization made by this
person was that the proposed regulations fail to contain any provision
to either detect or prevent circumvention of the law.
Response
We disagree with the conclusion that the definition of ``import''
as it appears in the ESA is applicable to the Eagle Act. To define
terms applying to a law within the law itself or within the
implementing regulations of that law is both reasonable and customary.
We define the term ``transport'' and clarify the definitions of
``import'' and ``export'' as they apply to the Eagle Act in the
implementing regulations in 50 CFR 22.3. We strive to use regulatory
terms in an invariable fashion; however, in certain cases it is
necessary for the regulations to clarify terminology used within a
specific statute. In the present case, we have chosen to define certain
limited kinds of permitted transportation activities as transportation
into or out of the United States. This is a special case where the use
of a term has no application to any activity other than those
specifically stated in the regulations of part 22. This distinction is
necessary for the proper administration of the Eagle Act, in a manner
consistent with the intent of Congress. We will make every effort to
explain to permit applicants the impact that various statutes may have
on a proposed activity and will seek to resolve any continuing
confusion on the part of applicants when processing applications.
We believe the characterization of the changes made as a
substitution of standards is inaccurate. The court system in the United
States is founded on principles of judicial review and interpretation
and, when necessary, the courts void laws in order to guarantee
reasonableness and compliance with constitutional provisions. We
believe that we share responsibility with the courts for ensuring that
these laws are reasonably interpreted and constitutionally enforced.
The changes to part 22 in this final rule are not a substitution of
standards. The Eagle Act provides the authority to make changes in the
way we administer eagle permits, and we seek to provide the reader with
an interpretation and clarification of statutory and regulatory
terminology. In making these changes we hope to prevent any abridgement
of constitutional rights while continuing to provide for enforcement of
the law within the standards and intent established by Congress.
We believe that we have adequate enforcement mechanisms in place to
deter circumvention of the law and to ensure the return of eagle parts
to the United States. In the case of transports, the permit conditions
will require the permit holder to return the eagle parts to the country
of origin. In addition, we may require submission of reports,
inventories, or photographic records of items transported outside the
United States in order to ensure those items' eventual return. Permit
holders must comply with all permit conditions.
We believe that regulations have general application and do not
only serve as a means of deterrence. Regulations also serve to provide
notice to law-abiding citizens of how to conform their activities to
comply with the requirements of applicable law. It is primarily the
responsibility of the individual to abide by the requirements of
applicable law and the requirements of the agency charged with
implementing the law. We believe that the changes made to these
regulations will neither increase nor decrease the underlying
difficulty of detecting or preventing wildlife violations. The proposed
changes are important because they allow a segment of our society the
ability to exercise their religious freedoms without undue
infringement. Additionally, the ability for the scientific and
educational communities to share specimens and exhibits is important to
encourage the protection and enhancement of the species.
Comment
The individual raised another issue by saying that the proposed
regulation will not satisfy the requirements of other relevant treaties
and statutes and the laws of foreign countries. Examples of this are
the requirements of the ESA, MBTA, and CITES. In the individual's
opinion, this would create several kinds of ``innocent violator''
situations. The person suggests several hypothetical scenarios to
illustrate this assertion. In the first scenario, an individual trying
to comply with the law receives a ``transportation'' permit and is of
the belief that he or she is in full compliance with the law. Later,
however, the same individual encounters difficulties upon learning he
or she has not complied with the requirements of other applicable laws.
The second scenario concerns an individual who succeeds in obtaining a
new ``transportation'' permit, but finds he or she does not qualify for
one or more required permits. In the third scenario an individual
possessing a permit authorizing possession and transportation of eagle
specimens within the United States mistakenly assumes that he or she
can lawfully export and/or re-export his or her specimen.
Response
We are sympathetic to the concerns of this individual, but we
believe that these hypothetical situations illustrate worst case
scenarios that this revision to part 22 protects against. The changes
made to part 22 will have exactly the opposite effect. As described
above, the changes made in 50 CFR 22.11 reiterate that we may issue one
permit, when possible, that will meet the separate requirements of the
applicable laws.
[[Page 50471]]
This fact will help prevent the problems suggested in the first two
scenarios from arising.
Regarding the third scenario, we do not wish to penalize a good
faith applicant who misunderstands what a permit authorizes. We seek to
minimize the chance of error or misunderstanding in the permitting
process; however, permit conditions are very explicit as to what
activities they authorize, and we must hold applicants accountable for
activity outside those allowed. This revision does not change our
position on the necessary compliance with applicable foreign laws as it
pertains to the third scenario. It will continue to remain the primary
responsibility of the individual seeking to transport items outside the
United States, or to return such items to the United States, to ensure
that he or she is in compliance with all applicable foreign laws and
the CITES requirements for exiting a foreign country, or entering
additional foreign countries while abroad.
Comment
Finally, the individual suggested that instead of making changes in
the regulations, we should request that Congress amend the Eagle Act,
and further suggested that by inserting ``import, export'' between the
words ``possession,'' and ``and transportation'' in the first paragraph
of 16 U.S.C. 668a, all questions of meaning would be resolved.
Response
We do not believe that such measures are necessary in order to
correct the limitations in the existing regulations. We believe that
Congress already has provided adequate authority to respond to the
needs of American Indians and public institutions. We also believe the
terms defined in 50 CFR 22.3 are compatible with 50 CFR 14.4 or those
in other sections of Title 50. We have clarified the definitions in
these regulations within the scope of this Act and in accordance with
the intentions of Congress for enforcement of the Eagle Act.
Required Determinations
Executive Order 12866
This rule was not subject to Office of Management and Budget (OMB)
review under Executive Order 12866. We conducted a review of economic
impacts and determined that the rule affects about 11,000 public
zoological and scientific societies, public museums, and Native
Americans who have permits under part 22. As commercial trade in eagles
and eagle parts is illegal, there is no related commercial activity.
The rule will not induce any new economic transactions. The ability to
transport eagle parts across borders will generate benefits by
permitting activities to occur without regard to political boundaries.
Native American religious rites may be held at the appropriate places,
and zoos and museums may be able to reach new audiences. These
efficiency benefits will improve the welfare of the individual but will
not be reflected in measures of economic activity.
Regulatory Flexibility Act--5 U.S.C. 601 et seq.
The Department of the Interior (Department) has determined that
this final rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq. This revision will have a beneficial effect
upon small entities for the reasons stated above and by simplifying
general permit procedures.
Small Business Enforcement Fairness Act--5 U.S.C.
Similarly, this is not a major rule under the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2).
Paperwork Reduction Act of 1995--44 U.S.C. 3507(d)
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the U.S. Fish and Wildlife Service has, in the past, received
approval for this collection of information using form 3-200 with
approval number 1018-0022. This information is used to determine
whether or not the applicant is qualified to take, possess, or
transport bald and golden eagles, or their parts, nests, or eggs. The
likely respondents to this collection of information are public
zoological or scientific societies, public museums, and American
Indians for religious purposes. The information is needed by us to
determine whether an applicant meets the criteria established in this
part and in part 13 of this subchapter B, allowing for the taking,
possession, and transportation, of bald and golden eagles, or their
parts, nests, or eggs. The annual burden of reporting and recordkeeping
is estimated to be two hours or less per response. The estimated number
of likely respondents is less than 2,600, yielding a total current
annual reporting and recordkeeping burden of 5,200 hours or less.
Executive Order 12988, NEPA, and Endangered Species Consideration
The Department has determined that these regulations meet the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988. These changes in the regulations in part 22 are regulatory
and enforcement actions encompassed in a categorical exclusion from
National Environmental Policy Act procedures under section 516 of the
Department Manual. An Environmental Action Memorandum is on file in the
U.S. Fish and Wildlife Service office in Arlington, Virginia. A
determination has been made pursuant to section 7 of the Endangered
Species Act that the revision of part 22 will not adversely affect
federally-listed species.
Unfunded Mandates Reform Act--2 U.S.C. 1531 et seq.
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Executive Order 12630
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 alter the ownership rights associated
with eagles and their parts.
Executive Order 12612
In accordance with Executive Order 12612, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Effective Date of Rule
This rule relieves current restrictions on Native Americans and
qualifying public institutions and has no impact on wild populations of
eagles. Accordingly, as provided by 5 U.S.C. 553(d) we have determined
that the rule become effective immediately upon publication in the
Federal Register.
List of Subjects in 50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, and Wildlife.
Regulation Promulgation
For reasons explained in the preamble, Title 50, Chapter I,
subchapter B, of the Code of Federal Regulations is amended as follows:
[[Page 50472]]
PART 22--[AMENDED]
1. The authority citation for part 22 is revised to read as
follows:
Authority: 16 U.S.C. 668a; 16 U.S.C. 703-712; 16 U.S.C. 1531-
1544.
2. Revise Sec. 22.1 to read as follows:
Sec. 22.1 What is the purpose of this part?
This part controls the taking, possession, and transportation
within the United States of bald and golden eagles for scientific,
educational, and depredation control purposes and for the religious
purposes of American Indian tribes. This part also governs the
transportation into or out of the United States of bald and golden
eagle parts for scientific, educational, and Indian religious purposes.
The import, export, purchase, sale, trade, or barter of bald and golden
eagles, or their parts, nests, or eggs is prohibited.
3. Amend Sec. 22.2 by revising the heading and paragraph (a) to
read as follows:
Sec. 22.2 What activities does this part apply to?
(a)(1) You can possess or transport within the United States,
without a Federal permit:
(i) Any live or dead bale eagles, or their parts, nests, or eggs
that were lawfully acquired before June 8, 1940; and
(ii) Any live or dead golden eagles, or their parts, nests, or eggs
that were lawfully acquired before October 24, 1962.
(2) You may not transport into or out of the United States, import,
export, purchase, sell, trade, barter, or offer for purchase, sale,
trade, or barter bald or golden eagles, or their parts, nests, or eggs
of these lawfully acquired pre-act birds. However, you may transport
into or out of the United States any lawfully acquired dead bald or
golden eagles, their parts, nests, or dead eagles, if you acquire a
permit issued under Sec. 22.22 of this part.
(3) No exemption from any statute or regulation will apply to any
offspring of these pre-act birds.
(4) You must mark all shipments containing bald or golden eagles,
alive or dead, their parts, nests, or eggs as directed in Sec. 14.81 of
this subchapter. The markings must contain the name and address of the
person the shipment is going to, the name and address of the person the
shipment is coming from, an accurate list of contents by species, and
the number of each species.
* * * * *
4. Amend Sec. 22.3 by revising the heading and adding in
alphabetical order definitions for `` export,'' ``import,'' and
``transportation into and out of the United States'' to read as
follows:
Sec. 22.3 What definitions do you need to know?
* * * * *
Export for the purpose of this part does not include the
transportation of any dead bald or golden eagles, or their parts,
nests, or dead eggs out of the United States when accompanied with a
valid transportation permit.
* * * * *
Import for the purpose of this part does not include the
transportation of any dead bald or golden eagles, or their parts,
nests, or dead eggs into the United States when accompanied with a
valid transportation permit.
* * * * *
Transportation into or out of the United States for the purpose of
this part means that the permitted item or items transported into or
out of the United States do not change ownership at any time, they are
not transferred from one person to another in the pursuit of gain or
profit, and they are transported into or out of the United States for
Indian religious purposes, or for scientific or exhibition purposes
under the conditions and during the time period specified on a
transportation permit for the items.
5. Revise Sec. 22.11 to read as follows:
Sec. 22.11 What is the relationship to other permit requirements?
You may not take, possess, or transport any bald eagle (Haliaeetus
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts,
nests, or eggs of such birds, except as allowed by a valid permit
issued under this part, part 13, and/or Sec. 21.22 of this subchapter,
or authorized under a depredation order issued under subpart D of this
part. We will accept a single application for a permit under this part
and any other parts of this subchapter B if it includes all of the
information required for an application under each applicable part.
(a) You do not need a permit under parts 17 and 21 of this
subchapter B for any activity permitted under this part 22 with respect
to bald or golden eagles or their parts, nests, or eggs.
(b) You must obtain a permit under part 21 of this subchapter for
any activity that also involves migratory birds other than bald and
golden eagles, and a permit under part 17 of this subchapter for any
activity that also involves threatened or endangered species other than
the bald eagle.
(c) If you are transporting dead bald or golden eagles, or their
parts, nests, or dead eggs into or out of the United States, you will
also need a Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES) permit under part 23 of this subchapter.
6. Revise Sec. 22.12 to read as follows:
Sec. 22.12 What activities are illegal?
(a) You may not sell, purchase, barter, trade, import, or export,
or offer for sale, purchase, barter, or trade, at any time or in any
manner, any bald eagle (Haliaeetus leucocephalus), or any golden eagle
(Aquila chrysaetos), or the parts, nests, or eggs of these birds, and
we will not issue a permit to authorize these acts.
(b) You may not transport into or out of the United States any live
bald or golden eagle, or any live egg of those birds, and we will not
issue a permit to authorize these acts.
7. Amend Sec. 22.21 as follows:
a. By revising the heading and the introductory text,
b. By redesignating paragraphs (a)(1) through (a)(6) as (a)(3)(i)
through (a)(3)(vi),
c. By revising paragraphs (a) introductory text, (b), and paragraph
(c) introductory text, and
d. By adding paragraphs (a)(1), (a)(2), and (a)(3) introductory
text, to read as follows:
Sec. 22.21 What are the requirements concerning scientific and
exhibition purpose permits?
We may, under the provisions of this Section, issue a permit
authorizing the taking, possession, transportation within the United
States, or transportation into or out of the United States of lawfully
possessed bald eagles or golden eagles, or their parts, nests, or eggs
for the scientific or exhibition purposes of public museums, public
scientific societies, or public zoological parks. We will not issue a
permit under this section that authorizes the transportation into or
out of the United States of any live bald or golden eagles, or any live
eggs of these birds.
(a) How do I apply if I want a permit for scientific and exhibition
purposes?
(1) You must submit applications for permits to take, possess, or
transport within the United States lawfully acquired live or dead bald
or golden eagles, or their parts, nests, or live or dead eggs for
scientific or exhibition purposes to the appropriate Regional
Director--Attention: Migratory Bird Permit Office. You can find
addresses for the Regional Directors in 50 CFR 2.2.
(2) If you want a permit to transport into or out of the United
States any lawfully acquired dead bald or golden
[[Page 50473]]
eagles or their parts, nests, or dead eggs for scientific or exhibition
purposes, you must submit your application to the Office of Management
Authority. Your application must contain all the information necessary
for the issuance of a CITES permit. You must also comply with all the
requirements in part 23 of this subchapter before international travel.
Mail should be addressed to: Office of Management Authority, U.S. Fish
and Wildlife Service, 4401 N. Fairfax Drive, Room 700, Arlington, VA,
22203.
(3) Your application for any permit under this section must also
contain the information required under this section, Sec. 13.12(a) of
this subchapter, and the following information:
* * * * *
(b) What are the conditions? In addition to the general conditions
in part 13 of this subchapter B, permits to take, possess, transport
within the United States, or transport into or out of the United States
bald or golden eagles, or their parts, nests, or eggs for scientific or
exhibition purposes, are also subject to the following condition: In
addition to any reporting requirement specifically noted in the permit,
you must submit a report of activities conducted under the permit to
the Regional Director--Attention: Migratory Bird Permit Office, within
30 days after the permit expires.
(c) How do we evaluate your application for a permit? We will
conduct an investigation and will only issue a permit to take, possess,
transport within the United States, or transport into or out of the
United States bald or golden eagles, or their parts, nests, or eggs for
scientific or exhibition purposes when we determine that the taking,
possession, or transportation is compatible with the preservation of
the bald eagle and golden eagle. In making this determination, we will
consider, among other criteria, the following:
* * * * *
8. Amend Sec. 22.22 as follows:
a. By removing paragraph (a)(6).
b. Revising the heading, the introductory text to the section,
paragraph (a) introductory text, paragraph (a)(5), paragraph (b)
introductory text, paragraph (b)(2), paragraph (c) introductory text,
and paragraph (d) to read as follows:
Sec. 22.22 What are the requirements concerning permits for Indian
religious purposes?
We will issue a permit only to members of Indian entities
recognized and eligible to receive services from the United States
Bureau of Indian Affairs listed under 25 U.S.C. 479a-1 engaged in
religious activities who satisfy all the issuance criteria of this
section. We may, under the provisions of this section, issue a permit
authorizing the taking, possession, and transportation within the
United States, or transportation into or out of the United States of
lawfully acquired bald eagles or golden eagles, or their parts, nests,
or eggs for Indian religious use. We will not issue a permit under this
section that authorizes the transportation into or out of the United
States of any live bald or golden eagles, or any live eggs of these
birds.
(a) How do I apply if I want a permit for Indian regligious
purposes? You must submit applications for permits to take, possess,
transport within the United States, or transport into or out of the
United States lawfully acquired bald or golden eagles, or their parts,
nests, or eggs for Indian religious use to the appropriate Regional
Director--Attention: Migratory Bird Permit Office. You can find
addresses for the appropriate Regional Directors in 50 CFR 2.2. If you
are applying for a permit to transport into or out of the United
States, your application must contain all the information necessary for
the issuance of a CITES permit. You must comply with all the
requirements in part 23 of this subchapter before international travel.
Your application for any permit under this section must also contain
the information required under this section, Sec. 13.12(a) of this
subchapter, and the following information:
* * * * *
(5) You must attach a certification of enrollment in an Indian
tribe that is federally recognized under the Federally Recognized
Tribal List Act of 1994, 25 U.S.C. 479a-1, 108 Stat. 4791 (1994). The
certificate must be signed by the tribal official who is authorized to
certify that an individual is a duly enrolled member of that tribe, and
must include the official title of that certifying official.
(b) What are the permit conditions? In addition to the general
conditions in part 13 of this subchapter B, permits to take, possess,
transport within the United States, or transport into or out of the
United States bald or golden eagles, or their parts, nests or eggs for
Indian religious use are subject to the following conditions:
(1) * * * * *
(2) You must submit reports or inventories, including photographs,
of eagle feathers or parts on hand as requested by the issuing office.
(c) How do we evaluate your application for a permit? We will
conduct an investigation and will only issue a permit to take, possess,
transport within the United States, or transport into or out of the
United States bald or golden eagles, or their parts, nests or eggs, for
Indian religious use when we determine that the taking, possession, or
transportation is compatible with the preservation of the bald and
golden eagle. In making a determination, we will consider, among other
criteria, the following:
* * * * *
(d) How long are the permits valid? We are authorized to amend,
suspend, or revoke any permit that is issued under this section (see
Secs. 13.23, 13.27, and 13.28 of this subchapter).
(1) A permit issued to you that authorizes you to take bald or
golden eagles will be valid during the period specified on the face of
the permit, but will not be longer than 1 year from the date it is
issued.
(2) A permit issued to you that authorizes you to transport and
possess bald or golden eagles or their parts, nests, or eggs within the
United States will be valid for your lifetime.
(3) A permit authorizing you to transport dead bald eagles or
golden eagles, or their parts, nests, or dead eggs into or out of the
United States can be used for multiple trips to or from the United
States, but no trip can be longer than 180 days. The permit will be
valid during the period specified on the face of the permit, not to
exceed 3 years from the date it is issued.
9. Amend Sec. 22.23 by revising the heading, paragraph (a)
introductory text, the heading of paragraph (b), and paragraph (b)(4)
to read as follows:
Sec. 22.23 What are the requirements for permits to take depredating
eagles?
* * * * *
(a) How do I apply for a permit? You must submit applications for
permits to take depredating bald or golden eagles to the appropriate
Regional Director--Attention: Migratory Bird Permit Office. You can
find addresses for the appropriate Regional Directors in 50 CFR 2.2.
Your application must contain the information and certification
required by Sec. 13.12(a) of this subchapter, and the following
additional information:
* * * * *
(b) What are the permit conditions? * * *
* * * * *
(4) In addition to any reporting requirement on a permit, you must
submit a report of activities conducted under the permit to the
appropriate Regional Director--Attention: Migratory
[[Page 50474]]
Bird Permit Office within 10 days following completion of the taking
operations or the expiration of the permit, whichever occurs first.
* * * * *
10. Amend Sec. 22.25 by revising the heading and paragraph (a)
introductory text to read as follows:
Sec. 22.25 What are the requirements concerning permits to take golden
eagle nests?
* * * * *
(a) How do I apply for a permit to take golden eagle nests? You
must submit applications for permits to take golden eagle nests to the
appropriate Regional Director--Attention: Migratory Bird Permit Office.
You can find addresses for the appropriate Regional Directors in 50 CFR
2.2. We will only accept applications if you are engaged in a resource
development or recovery operation, including the planning and
permitting stages of an operation. Your application must contain the
general information and certification required by Sec. 13.12(a) of this
chapter plus the following additional information:
* * * * *
Dated: June 11, 1999.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-24282 Filed 9-16-99; 8:45 am]
BILLING CODE 4316-55-M
