E7-22182. Migratory Bird Permits; Revisions to Migratory Bird Import and Export Regulations

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, propose changes in the regulations governing migratory bird permitting. We propose to amend 50 CFR part 21 to resolve problems related to export of species covered by Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) permits or certificates; to allow the importation and possession without an import permit of legally acquired migratory game birds in the families Anatidae, Columbidae, Gruidae, Rallidae, or Scolopacidae that were lawfully hunted in a foreign country; to extend the period of time for which an Import and Export permit is valid from 3 to 5 years; and to reorganize and reword the regulations to make them easier to understand.

DATES:

Send comments on this proposal by February 19, 2008.

ADDRESSES:

For detailed instructions on submitting comments and viewing others' comments, please see “Public Participation” below. You may submit comments, identified by RIN 1018-AV35, by any one of the following methods:

• E-mail: Import/[e-mail]. Include RIN number 1018-AV35 in the subject line of the message;
• Fax: [phone];
• Mail: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-4107, Arlington, VA 22203-1610;
• Hand Delivery: Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, VA 22203-1610; or
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT:

Dr. George T. Allen, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-1825.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Fish and Wildlife Service is the Federal agency that has been delegated 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.

Among other things, we manage the import and export of migratory birds and their parts, eggs, and nests. The regulations at 50 CFR 21.21 set forth the requirements for import and export permits for migratory birds and their parts, eggs, and nests. Currently at § 21.21, we set forth requirements for import and export permits, application procedures for these permits, additional permit conditions, and the term for which a permit is valid. These regulations are nearly 18 years old and are, in part, outdated. In particular, these regulations do not mention the requirements associated with CITES, addressed in part 23 of our regulations. In addition, many of the requirements currently set forth at § 21.21 simply reference another part or section of our regulations. They are therefore difficult to read and understand.

We propose to update and revise the regulations at § 21.21 to, among other things: Address the export of species covered by CITES; allow the importation and possession of legally acquired migratory game birds in the families Anatidae, Columbidae, Gruidae, Rallidae, and Scolopacidae that were lawfully hunted in a foreign country; extend the period of time for which an Import and Export permit is valid from 3 to 5 years; and reorganize and reword the regulations to make them easier to understand. Specifically, we propose changes to § 21.21 as follows.

General requirements (proposed § 21.21(a)): Current § 21.21(a) provides the general requirements for import and export permits, as well as the exceptions to these requirements. We would reorganize current § 21.21(a) to separate the general requirements (proposed § 21.21(a)) from the exceptions to the requirements (proposed § 21.21(b), (c) and (d)). In proposed § 21.21(a), we would also acknowledge all of the regulations, including the CITES regulations at 50 CFR part 23, that apply to imports and exports of migratory birds and their parts, eggs, and nests. These proposed revisions would help ensure that importers and exporters of migratory birds or their parts, eggs, or nests understand all of the requirements applicable to their imports and exports.

Exceptions for import permits (proposed § 21.21(b)): Current § 21.21(a)(1) provides the requirements for import permits; it does not provide any exceptions to import permit requirements for migratory birds or their parts, eggs, or nests. Current § 21.21(a)(2) does have one import permit exception for raptors for falconry that will be discussed later in this document. We would add, in a new § 21.21(b), a provision to allow the importation and possession without an import permit of legally hunted migratory game birds in the families Anatidae, Columbidae, Gruidae, Rallidae, and Scolopacidae that were lawfully hunted in a foreign country. The imported specimens could be carcasses, skins, or mounts and would have to be accompanied by evidence of lawful export from the country of origin. These families may be legally hunted under the provisions of the migratory bird treaties with Canada and Mexico, though hunting seasons have not been established for all of them. We wish to allow hunters to import birds in these families that they legally hunted outside the United States without requiring an import permit to do so.

Exceptions for export permits (proposed § 21.21(c)): As stated above, current § 21.21(a) provides the requirements for import and export permits, and exceptions to these requirements. Current § 21.21(a) does provide exceptions to the export permit requirements for certain captive-bred migratory game birds exported to Canada or Mexico and for raptors used for falconry exported to or imported from Canada or Mexico. Our proposed § 21.21(c) would retain these exceptions, with certain changes.

Instead of simply directing readers to 50 CFR 21.13(b) of the regulations for the marking requirements for captive-bred migratory game birds exported to Canada or Mexico, we would detail those requirements in this new paragraph. This proposed revision would help ensure that exporters of migratory game birds understand the exceptions to our export permit requirements.

We would also move the provisions concerning the exception to the import and export permit requirements for raptors for falconry to their own paragraph in this section of the regulations. We believe that this change would help readers find this information in the regulations.

In addition, we would add a provision to allow export of lawfully acquired captive-bred raptors, provided that the exporter holds both a valid raptor propagation permit and a CITES export permit, and has full documentation of the lawful origin of the raptor(s). The raptor(s) would also have to be properly identified by a captive-bred raptor band (see 21.30 of this Part). This change would eliminate redundant permitting reviews for export of captive-bred raptors and would help ensure that border inspectors can easily and accurately identify birds for export.

Exception for transport of falconry birds (proposed § 21.21(d)): The exception to the import and export permit requirements for falconry birds currently resides in § 21.21(a)(2), with the general export permit requirements for migratory birds. We propose to put the exception to the requirements for falconry birds into its own paragraph (proposed new § 21.21(d)) so that it is easier to find in the regulations. For clarity, we would revise the language concerning the exception, and we would acknowledge the CITES regulations at 50 CFR part 23 that apply to exports of these birds. This proposed revision would help ensure that importers and exporters of falconry birds understand this exception to the transport requirements for falconry birds.

We believe it is reasonable to allow temporary transport of birds held for falconry out of the United States. Therefore, a proposed provision in the regulation makes it clear that we allow this action. The provision states that unless you have the necessary CITES permit or certificate to permanently export a raptor from the United States, you must bring any raptor you transport out of the country for use in falconry back to the United States when you return. However, if the raptor dies or is lost, the permittee must document the loss of the bird as required by his or her State falconry regulations and any conditions on the CITES document.

Inspection procedures (proposed § 21.21(e)): The current § 21.21 is silent on inspection procedures for imported and exported migratory birds and their parts, eggs, and nests, even though these inspections occur regularly. We propose to add a paragraph explaining that migratory birds imported into, or exported from, the United States, and any associated documentation, may be inspected by the Service or Customs and Border Protection.

Application procedures (proposed § 21.21(f)): Current § 21.21(b) provides the application procedures for permits to import or export migratory birds or their parts, eggs, or nests. The current regulations set forth the information required on the application forms. The “additional information,” specified in current § 21.21(b)(1) through (b)(6), has been incorporated into the relevant application forms, so we are proposing to remove that information from the regulations. Instead, we propose to list the specific forms required to apply for an import or export permit (FWS form 3-200-6) or a permit for scientific collecting (FWS form 3-200-7). We also propose to add language reminding applicants of the application fee that must accompany their application to import or export migratory birds or their parts, eggs, or nests. This change would help ensure that persons interested in importing or exporting know which form to complete and its associated application fee.

Service criteria for issuing a permit (proposed § 21.21(g)): The current § 21.21 is silent on the criteria we consider when deciding whether or not to issue a permit to import or export migratory birds or their parts, eggs, or nests. We propose to include the issuance criteria in this section to ensure that the public understands how we make our decisions.

Standard conditions for a permit (proposed § 21.21(h)): The current § 21.21(c) provides information on additional permit conditions. We would retain this information, but rewrite it for clarity. We would also add a reference to 50 CFR part 14 to ensure that importers and exporters of migratory birds or their parts, eggs, or nests understand that they must also comply with the general regulations concerning the importation, exportation, and transportation of wildlife.

Term of permit (proposed § 21.21(i)): The current § 21.21(d) provides information on the length of time that a permit is valid. We also propose to extend the period of time for which an import or export permit is valid from 3 to 5 years. In recent years, as we have completed regulations revisions we have extended the duration of some permit types that we believe have a limited potential effect on bird populations, to ease the burden on both permittees and our permits examiners. We believe that is also true of the import and export regulations, so we propose to extend the term of an Import and Export permit from 3 to 5 years.

Plain Language: Throughout our proposed revisions to § 21.21, we have used short sentences and active voice to make the regulations easy to understand.

Public Participation

If you submit electronic comments, please include your name and return address in your message, and identify it as comments on RIN 1018-AV35 in the subject line of your message.

If you submit hard copy comments, please include your name and return address in your letter and identify it as comments on RIN 1018-AV35. To facilitate compilation of the Administrative Record for this action, you must submit hard copy comments on 81/2 -inch by 11-inch paper.

All comments on the proposed rule, including any personal information received, will be available for public inspection during normal business hours at Room 4091 at the U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 4501 North Fairfax Drive, Arlington, VA 22203-1610. The supporting 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 file.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will not consider anonymous comments.

Following review and consideration of comments, we will issue a final rule on the proposed regulation changes.

Required Determinations

Clarity of This Regulation

Executive Order (E.O.) 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: “§ 21.21 Import and export permits.”) (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 E.O. 12866, this proposed rule is not a significant regulatory action. The Office of Management and Budget makes the final determination of significance under E.O. 12866.

a. This proposed rule would not raise novel legal or policy issues. The proposed provision is in compliance with other laws, policies, and regulations.

b. This proposed rule would 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 thus is not required. There are no costs associated with this proposed rule.

c. This proposed rule would not create inconsistencies with other agencies' actions. The proposed rule deals solely with governance of migratory bird permitting in the United States. No other Federal agency has any role in regulating activities with migratory birds.

d. This proposed rule would 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 migratory birds.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would 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 would not have a significant economic impact on a substantial number of small entities. We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action would not have a significant economic impact on a substantial number of small entities, because the changes we are proposing are intended primarily to simplify export for a limited number of raptor propagators.

There would be no costs associated with this regulatory change. Consequently, we certify that because this proposed rule would not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.

This proposed rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It would not have a significant impact on a substantial number of small entities.

a. This proposed rule would not have an annual effect on the economy of $100 million or more.

b. This proposed rule would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

c. This proposed rule would 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.

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 proposed rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the proposed regulation would not affect small government activities in any significant way.

b. This proposed rule would 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 E.O. 12630, this proposed rule would not have significant takings implications because it would not contain a provision for taking of private property. Therefore, a takings implication assessment is not required.

Federalism

This proposed rule would not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It would not interfere with the States' ability to manage themselves or their funds. No significant economic impacts are expected to result from changing exemptions in migratory bird permit requirements.

Civil Justice Reform

In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule would 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 proposed regulations under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). We may not collect or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number. The Office of Management and Budget approved the information collection requirements for this part, and assigned OMB Control Number 1018-0022. There are no new information collection requirements associated with this regulations change.

National Environmental Policy Act

We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and Part 516 of the U.S. Department of the Interior Manual (516 DM). We have no date on the number of legally hunted birds that individuals might wish to import, though we doubt that the number will be large. Because these species are legally hunted elsewhere, we doubt that this proposed regulations change would appreciably change the impact of hunting on these species. Therefore, we do believe that there would be a significant environmental impact due to the proposed regulations change.

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), E.O. 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 proposed rule would not interfere with the Tribes' ability to manage themselves or their funds or to regulate migratory bird activities on tribal lands.

Energy Supply, Distribution, or Use (E.O. 13211)

On May 18, 2001, the President issued E.O. 13211 addressing regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule would affect only import and export of birds in limited circumstances, it is not a significant regulatory action under E.O. 12866, and would 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 Proposed Action

The primary change we propose is to allow export of lawfully acquired captive-bred raptors provided that the exporter holds a valid raptor propagation permit and has been issued a Convention on International Trade in Endangered Species (CITES) export permit. This change should eliminate redundant permitting required for this activity. Another important change we propose is to allow the import of legally acquired migratory game birds without a permit. A permit is currently required to import such species. We believe that there are no significant environmental impacts of this action.

Socioeconomic. This proposed rule would not have discernible socioeconomic impacts.

Migratory bird populations. This proposed rule would not affect migratory bird populations.

Endangered and threatened species. The proposed regulation is for migratory bird species that are not threatened or endangered. It would not affect threatened or endangered species or critical habitats.

Compliance With Endangered Species Act Requirements

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)). The proposed regulations change 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 4107, Arlington, VA 22203-1610.

List of Subjects in 50 CFR Part 21

• Exports
• Hunting
• Imports
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

Proposed Regulation Promulgation

For the reasons stated in the preamble, we propose to amend part 21 of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 21—MIGRATORY BIRD PERMITS

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); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703.

2. Revise § 21.21 to read as follows:

§ 21.21

Import and export permits.

(a) What is the permit requirement? Except as provided in paragraphs (b), (c), and (d) of this section, you must have a permit to import or export migratory birds, their parts, nests, or eggs. You must meet the applicable permit requirements of parts 14, 15, 17, 21, 22, or 23 of this subchapter B, even if the activity is exempt from a migratory bird import or export permit.

(b) What is the exception to the import permit requirements? You do not need a migratory bird permit to import or possess migratory game birds in the families Anatidae, Columbidae, Gruidae, Rallidae, and Scolopacidae for personal use that were lawfully hunted by you in a foreign country if you comply with the requirements of part 20 of this subchapter B (Migratory Bird Hunting). The game birds may be carcasses, skins, or mounts. You must provide evidence that you lawfully took the bird or birds in, and exported them from, the country of origin. This evidence must include a hunting license and any export documentation required by the country of origin. You must keep these documents with the imported bird or birds permanently.

(c) What are the exceptions to the export permit requirements? You do not need a migratory bird export permit to:

(1) Export live captive-bred migratory game birds to Canada or Mexico if they are marked by one of the following methods:

(i) Removal of the hind toe from the right foot;

(ii) Pinioning of a wing by removal of all or some of the metacarpal bones of one wing, which renders the bird permanently incapable of flight;

(iii) Banding of one metatarsus with a seamless metal band; or

(iv) Tattooing of readily discernible numbers and/or letters on the web of one foot.

(2) Export live lawfully acquired captive-bred raptors provided you hold a valid raptor propagation permit issued under § 21.30 and you obtain a CITES permit or certificate issued under part 23 to do so. You must have full documentation of the lawful origin of each raptor, and each must be identifiable with a seamless band issued by the Service, including those with an implanted microchip for identification.

(d) What is the exception for the transport of falconry birds? You are not required to obtain a migratory bird import or export permit for the temporary transport of a raptor or raptors you lawfully possess for falconry to and from another country for use in falconry. Each raptor must be covered by a CITES certificate of ownership issued under part 23 of this chapter. You must have full documentation of the lawful origin of each raptor, and each must be identifiable with a seamless band issued by the Service, including those with an implanted microchip for identification. Unless you have the necessary CITES permit or certificate to permanently export a raptor from the United States, you must bring any raptor you transport out of the country for falconry back to the United States when you return. If the raptor dies or is lost, you are not required to bring it back but must report the loss immediately upon your return to the United States in the manner required by the falconry regulations of your State, and any conditions on your CITES certificate.

(e) Will my imported or exported migratory birds be inspected? All migratory birds imported into, or exported from, the United States, and any associated documentation, may be inspected by the Service or Customs and Border Protection. You must comply with the import and export regulations in Part 14 of this chapter.

(f) What must I do to apply for a migratory bird import or export permit? You must apply to the appropriate Regional Director—Attention Migratory Bird Permit Office. You can find the address for your Regional Director in § 2.2 of subchapter A of this chapter. Your application package must include a completed application (form 3-200-6, or 3-200-7 if the import or export is associated with an application for a scientific collecting permit), and a check or money order made payable to the U.S. Fish and Wildlife Service in the amount of the application fee for permits issued under this section, as listed in § 13.11 of this chapter.

(g) What criteria will the Service consider before issuing a permit? After we receive a completed import or export application, the Regional Director will decide whether to issue you a permit based on the general criteria of § 13.21 of this chapter and whether you meet the following requirements:

(1) You are at least 18 years of age;

(2) The bird was lawfully acquired;

(3) The purpose of the import or export is consistent with the conservation of the species;

(4) For an import permit, you are authorized to lawfully possess the migratory bird after it is imported.

(h) Are there standard conditions for the permit? Yes, standard conditions for your permit are set forth in part 13 of this subchapter B. You also must comply with the regulations in part 14 (importation, exportation, and transportation of wildlife). We may place additional requirements or restrictions on your permit as appropriate.

(i) How long is a migratory bird Import and Export permit valid? Your migratory bird import or export permit expires on the date designated on its face unless it is amended or revoked, but it will not be valid for more than 5 years.

Dated: November 2, 2007.

David M. Verhey,

Acting Assistant Secretary for Fish and Wildlife and Parks.