[Federal Register: October 8, 2008 (Volume 73, Number 196)]
[Rules and Regulations]
[Page 59447-59477]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc08-24]
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Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 21 and 22
Migratory Bird Permits; Changes in the Regulations Governing Falconry;
Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 21 and 22
[FWS-R9-MB-2008-0039] [91200-1231-9BPP]
RIN 1018-AG11
Migratory Bird Permits; Changes in the Regulations Governing
Falconry
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations
governing falconry in the United States. We have reorganized the
regulations and added or changed some provisions in them. In
particular, we have eliminated the requirement for a Federal permit to
practice falconry. The changes will make it easier to understand the
requirements for the practice of falconry, including take of raptors
from the wild, and the procedures for obtaining a falconry permit. This
rule also adds a provision allowing us to approve falconry regulations
that Indian Tribes or U.S. territories adopt. State, tribal, or
territorial laws and regulations governing falconry must meet the
standards in these regulations by January 1, 2014, at which time the
Federal permit program will be discontinued.
DATES: These regulations are effective November 7, 2008.
FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of
Migratory Bird Management, at 703-358-1825.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. 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 are strictly prohibited except
as permitted under regulations implementing the MBTA. The regulations
govern the issuance of permits for activities with migratory birds.
They are in title 50, Code of Federal Regulations, parts 10, 13, 21,
and 22. Raptors also may be protected by State, tribal, and territorial
regulations.
Our authority also is based on the Bald and Golden Eagle Protection
Act (16 U.S.C. 668-668d). The Eagle Act extends additional protections
for bald eagles and golden eagles, and addresses some human activities
that may affect these species. The Act specifies circumstances under
which falconers may take golden eagles from the wild.
We proposed revisions to the regulations governing falconry on
February 9, 2005 (70 FR 6978-6992). We did so to address changes in the
practice of falconry and to respond to a request from the Association
of Fish and Wildlife Agencies that we consider eliminating duplicative
Federal/State falconry permitting. The rule was open for comment for 90
days.
Regulations for falconry schools are not covered under this rule.
We have concluded that falconry schools are most appropriately
addressed under regulations governing education with migratory birds,
and these regulations are under development.
II. Changes in the Regulations Governing Falconry
We have rewritten the regulations in plain language and have
changed or added some provisions. The following are notable substantive
changes. In this SUPPLEMENTARY INFORMATION section, ``States'' refers
to States, the District of Columbia, and territories under the
jurisdiction of the United States.
1. After adoption of these regulations, a State, tribal, or
territorial falconry permit will suffice for the practice of falconry.
A dual State/Federal permitting system has been in place since
implementation of Federal regulations governing falconry. Every State
government except that of Hawaii has now implemented regulations
governing falconry. The government of the District of Columbia has not
implemented regulations governing falconry. To allow falconry, States,
tribes, territories, and the District of Columbia must operate within
the bounds of the Federal regulations. We have concluded that with
State, tribal, and territorial permitting in place (if tribes or
territories choose to do so), we can reduce the paperwork burden on
permittees and the Service, and can eliminate the cost of a Federal
permit for falconry permittees. No tribe or territory has sought to
establish falconry regulations, but this rule makes it clear that they
can do so.
2. This rule implements electronic reporting of acquisition,
transfer, or loss of raptors held for falconry. Electronic reporting
will eliminate the need for permittees to send us paper reports for
these actions, though some may still have to mail completed forms to
their State or tribal governments if those entities require signed 3-
186A forms. Implementing electronic reporting for transactions under
the falconry regulations will reduce permittee expenses and the time it
takes to report. We will maintain the 3-186A reporting system. The
States, tribes, or territories will need to regularly update
information on falconry permittees. We will not allow submission of
paper 3-186A forms after these regulations are in effect in a State or
territory or by a tribe. However, the States, tribes, or territories
may choose to accept paper 3-186A forms. If a State, tribe, or
territory chooses to do so, it will be responsible for entering the
data into the electronic 3-186A system.
3. We will allow Apprentice Falconers to possess additional species
of Falconiformes and Strigiformes taken from the wild.
4. Apprentice Falconers may possess non-imprinted captive-bred
raptors of the species they are allowed to possess.
5. The regulations add requirements for capture and possession of
golden eagles to use in falconry for Master Falconers with sufficient
experience. Previously, they were covered in 50 CFR 22.24. We
simplified the regulations in 50 CFR 22.24 to account for this change,
which will facilitate permitting by the States, tribes, and
territories. We will no longer require Federal permitting of falconers
for possession of golden eagles.
6. The regulations allow Master Falconers to keep up to 5 wild
raptors to use in falconry. Currently, Master Falconers are allowed to
keep 3 raptors for falconry. Allowing the possession of 5 wild raptors
does not change the allowed annual take of 2 raptors from the wild each
year (Sec. 21.29 (e)(2)).
7. A Master Falconer may possess any number of captive-bred raptors
if they are used in falconry. Allowing the possession of captive-bred
raptors does not change the allowed annual take of 2 raptors from the
wild or the level of care we require (Sec. 21.29 (e)(2)).
8. General Falconers may keep 3 raptors to use in falconry.
Allowing the
[[Page 59449]]
possession of 3 raptors does not change the allowed annual take of 2
raptors from the wild.
9. Each State, tribe, or territory may develop and administer the
required examination for Apprentice Falconers and new residents.
Changes in the examination a State, tribe, or territory administers
will require our approval (Sec. 21.29 (b)(4)(ii)).
10. A new resident of the United States can qualify for a falconry
permit appropriate for his or her level of experience. The applicant
must correctly answer at least 80 percent of the questions on the
supervised examination for Apprentice Falconers. The State, tribe, or
territory under which the applicant wishes to obtain a falconry permit
administers the examination. If the applicant passes the test, the
State, tribe, or territory may decide what level of falconry permit he
or she may hold, consistent with the guidelines set forth in these
regulations (Sec. 21.29 (c)(6)).
11. We rewrote and simplified the facilities and equipment
requirements to make them easier to understand (Sec. 21.29 (c)). We do
not intend to require rebuilding of existing facilities if a State has
approved them.
12. Possession of facilities for housing raptors will not be a
prerequisite for obtaining a permit. However, a permittee must have
facilities that pass State, tribal, or territorial inspection before he
or she may obtain a raptor for use in falconry. This change will allow
former falconers who no longer can keep falconry raptors to get a
falconry permit and assist Apprentice Falconers in learning about the
practice of falconry (Sec. 21.29 (c)(5)(ii)).
13. We removed the 180-day-per-year limit on take of raptors from
the wild. Raptors may be taken for falconry during periods specified by
the States, tribes, or territories. The 180-day restriction
unnecessarily limits the governance of take by States, tribes, or
territories. We believe it is reasonable for them to be able to
regulate take from the wild when different raptor species are present.
The 180-day restriction limits the ability of a State, tribe, or
territory to do so.
14. When flown for falconry, a hybrid raptor must have two attached
radio transmitters that will allow the permittee to locate it. We
prohibit intentional permanent release of hybrids to the wild (Sec.
21.29 (e)(8) and (e)(9)(iv)).
15. Falconers will be responsible for treatment and rehabilitation
costs of falconry raptors injured in trapping efforts.
16. This rule requires banding or microchipping of all goshawks
taken from the wild. We eliminated the requirement to band golden
eagles taken from the wild. Goshawk numbers in parts of the country and
law enforcement concerns over take and transport of goshawks have led
us to require banding of goshawks taken out of the wild. However, very
few golden eagles are taken from the wild each year, and we deem
banding them unnecessary at present (Sec. 21.29 (c)(7)(i)).
17. The rule allows temporary release of falconry raptors to the
wild (``hacking'') for both wild-caught birds and captive-bred birds
(Sec. 21.29 (f)(2)).
18. General and Master Falconers may use suitable raptors in raptor
propagation if the propagator has a raptor propagation permit. The
raptors do not need to be transferred from the falconer's falconry
permit if they are used temporarily in propagation.
19. A falconer may transfer most raptors captured from the wild
under a falconry permit to a propagation permit only after they have
been used in falconry for at least 2 years (Sec. 21.29 (f)(5)(i)).
Previously, raptors taken for falconry could be transferred to another
permit type immediately after capture. With this change, we are
addressing State concerns over take under falconry permits and
immediate transfer to propagation permits. This has been used to
circumvent State review of take of raptors for the wild for use in
propagation. The 2-year restriction and the limits on possession
together will mean that falconers will be limited in their abilities to
take birds from the wild for use in propagation.
20. General and Master Falconers may use suitable raptors they
possess in conservation education programs without an additional permit
(Sec. 21.29 (f)(8)(i)). An apprentice falconer may present
conservation education programs and use a raptor he or she possesses if
he or she is under the supervision of a General or Master Falconer when
presenting the program (Sec. 21.29 (f)(8)(ii)). The raptors must be
used in hunting; they may not be held under a falconry permit to be
used primarily for conservation education purposes. Falconers can serve
a role in educating the public about the roles raptors play in the
environment and their legal protections. Any bird held primarily for
education must be held under a Special Purpose education permit.
21. We lowered the age for Apprentice Falconers from 14 to 12
(Sec. 21.29 (c)(3)(i)(A)).
22. A visitor to the United States with a falconry permit from his
or her country may practice falconry in the United States if the State,
tribe, or territory allows it (Sec. 21.29 (f)(14)).
23. We added a provision for immediate restoration of revoked
permits. This change is to make it clear that restoration of an
individual's permit after the end of a revocation period is at the
discretion of the State, tribe, or territory (Sec. 21.29 (i)).
24. We revised the definitions of the terms ``falconry'' and
``raptor,'' and added definitions of the terms ``hacking,'' ``hybrid,''
and ``imprint.''
25. General and Master Falconers may assist Federal- and State-
permitted migratory bird rehabilitators in conditioning of raptors for
permanent release to the wild. A falconer may work with a rehabilitator
without being a subpermittee of the rehabilitator (Sec. 21.31 (e)(3)).
Because it will take time for States to change their falconry
regulations to comply with these regulations, the final compliance date
for these regulations is January 1, 2014.
Each State, tribe, or territory that wishes to allow the practice
of falconry must work with us to ensure correct operation of electronic
reporting of take of raptors from the wild, and must then certify to
the Director of the U.S. Fish and Wildlife Service that it is in
compliance with the new regulations. Any State certified to allow
falconry under the Federal falconry regulations in Sec. Sec. 21.28,
21.29, and 22.24 of this part prior to the effective date may continue
to allow falconry under those provisions until we approve that State's
recertification, or until January 1, 2014. Falconry shall not be
permitted in a State or territory or by a Tribe after January 1, 2014,
until that State, tribe, or territory develops a permitting program
that the Director has certified to be in compliance with these
regulations.
III. Changes from the Proposed Rule
We made many wording changes and small organizational changes from
the proposed rule. Major changes from the proposed rule are limited.
1. We added territories to those entities that may promulgate
falconry regulations.
2. We changed the possession limit for General Falconers from 2
raptors to 3.
3. We deferred to numerous comments about the provisions for review
of State, tribal, or territorial permitting and suspension of
permitting. We changed the language about the reviews to allow the
States, tribes, and territories to work with us to correct permitting
deficiencies, should they occur.
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4. Many commenters suggested that the proposed change in the
regulations that would require more experience to advance to General
Falconer was not warranted. We agreed with the prevailing comments on
this point, and revised the amount of experience required to advance to
General Falconer.
5. We added a facilities inspection requirement for falconers who
spend 120 days or more at another location with any of their falconry
raptors.
6. Some commenters were opposed to the annual reporting each year
on golden eagle trapping activities required in addition to 3-186A
reports. We agreed with their argument, and deleted the requirement
from these regulations. We will compile information on take of eagles
through the electronic reporting system.
7. Some commenters felt that the language in 50 CFR 13 does not
provide sufficient protection for falconry birds, and suggested that
inspections be allowed only in the presence of the permittee. We added
this language to these regulations.
8. Some commenters suggested that we allow implanting of microchips
in lieu of required bands. We added the use of International
Standardization Organization- compliant microchips to these
regulations.
9. Many commenters asked for a provision allowing a falconry bird
to feed on prey that the falconer did not intend to have the raptor
hunt. We added a provision covering this issue to these regulations.
10. Some commenters suggested that the question and answer format
in the proposed rule did not work well, or that issues were addressed
in more than one section of the rule. We changed the wording of these
sections whenever we received suggested changes, reorganized the
regulations to address the concerns about regulations in multiple
sections, and changed from the question/answer format.
11. We clarified language in this final rule about trapping raptors
for falconry on public lands.
12. We added language to this final rule stating that take of birds
under a depredation order can include take by falconry birds, unless
the Depredation Order specifies methods of take that do not include
falconry.
13. In a separate rule we have revised Sec. 21.21 to simplify the
regulations governing import and export of migratory birds. The
proposed changes to Sec. 21.21 are deleted from this rule.
IV. Comments on the Proposed Rule
We received 967 comments from individuals and organizations,
including 30 from States and 3 from other government entities, on the
proposed rule published on February 9, 2005 (70 FR 6978-6992). We have
reviewed the comments, and respond here to the most significant issues
raised.
Issue. Authority over captive-bred birds. A number of commenters
asserted that the U.S. Fish and Wildlife Service has no authority to
regulate captive-bred raptors.
Response. The Migratory Bird Treaty Act does not distinguish
between wild and captive-bred birds. In addition, case law has
established that the MBTA does govern activities involving captive-bred
raptors.
Issue. Elimination of the Federal falconry permit. This change was
requested by the States through the Association of Fish and Wildlife
Agencies on behalf of the States, and would simply eliminate the
Federal permit. All States that are expected to allow falconry have now
implemented regulations governing the practice, and all have approved
falconry regulations in place. The majority of those who commented on
this issue agreed with the proposal to have falconry permits
administered by the States.
``... this decision because of the shift from national to
local standards has the potentially [sic] to significantly affect
raptor populations at a local and national level and therefore requires
an Environmental Impact Statement under the provisions of the National
Environmental Policy Act.''
Response. This assertion is incorrect. The take of raptors from the
wild by each permittee each year for use in falconry is not altered;
falconers are still limited to take of no more than two raptors from
the wild each year. Thus, the change to falconry permitting
administered by the States has no environmental impact. Further, in our
assessment of the effects of take from the wild for falconry and raptor
propagation (U.S.F.W.S. 2007), we found that the take of wild raptors
for falconry is very unlikely to have a significant detrimental effect
on wild raptor populations. All States must still maintain regulations
at least as restrictive as the Federal regulations. The revised
regulations require the States to be diligent in regulating falconry
for the sport to continue to be allowed. Further, Federal authority for
enforcement of most aspects of the falconry regulations is not
diminished by the regulations change.
Issue. Federal oversight.
``... federal oversight of permitting brings a different
level of expertise and enforcement level to the sport of falconry.
State fish and wildlife agencies do not necessarily have the staff,
funding, expertise, or enforcement capabilities that FWS is able to
provide. An effective permit program for falconry requires a strong
federal presence and federal resources.''
``I strongly approve of eliminating the Federal permit OR
changing it to a one time issued permit for life.''
``The U.S. Fish and Wildlife Service should transfer
management of falconry programs to States that comply with federal
falconry standards. We agree that, in the future, there should be no
federal falconry permit. The mandates and obligations of the Service
under the Migratory Bird Treaty Act (MBTA) require the Service to
continue to regulate the sport of falconry. Therefore, the Service
should work to correct all administrative issues that arise regarding
States' compliance with the changes in the falconry regulations. It
took 3 decades to develop the current system and no arbitrary change-
over period should be imposed that could potentially leave any State
behind. Any State that modifies its regulations to be in compliance
with the new federal falconry regulations should be allowed to operate
immediately under the new regulations.'' (State comment)
``GADNR [Georgia Department of Natural Resources] supports
the proposed change to the licensing procedures for falconry and the
elimination of duplicative licensing. Once State regulations have been
reviewed and addressed, we do not foresee any significant additional
workload in managing these licensees.'' (State agency)
We agree that the current dual permitting system should be
revised to shift falconry permit administration to the individual
States. This will relieve staff of all agencies of an extra
administrative step in the permitting process.'' (State agency)
``The most substantive proposed change in the revised
regulations is the elimination of the federal falconry permit once a
State is certified to be in compliance with the federal regulations.
The WDFW [Washington Department of Fish and Wildlife] has supported
that action and the retention of a single State permit requirement.''
(State agency)
``The proposed revisions appear to not only reduce permit
process duplicative efforts - as USFWS suggests -but to relax Federal
oversight of migratory bird take - an oversight that has been valued
for almost thirty years. CDOW [Colorado Division of Wildlife]
recognizes the benefit that Federal guidelines and regulations bring to
the management of migratory birds, and the
[[Page 59451]]
MBTA's role in governing all harvest in order to prevent over-
utilization. CDOW contends that relaxation of Federal oversight could
result in undesired impacts to wildlife populations, due in part to an
increased dependency on already insufficient State resources, and due
additionally to the loss of a national perspective of the ecological
and cultural values that guide management decisions. Like the USFWS,
most States and tribes are continuing to ``do more with less.'' In
addition, concern has been raised that loosening of Federal oversight
suggests a retreat from the hard won progress made toward managing
wildlife and habitats on an ecosystem or biome level. While the USFWS
proposed revisions continue to allow that States and Tribes enact more
restrictive regulations, in practice, States commonly revert to the
federal regulatory scheme - publics sometimes demand it. Management of
such a highly valued wildlife resource may best be undertaken in a
strong partnership.'' (State agency)
``... federal oversight is necessary to ensure that
regional impacts to raptor populations from the sport of falconry are
identified and addressed in the permitting process. Only by tracking
permits at the regional level can potential direct impacts to
individual raptor species and raptor populations in general be
adequately understood. It is critical that FWS track the number of
permits issued and the number of each species taken in each region in
order to prevent negative cumulative impacts as required under the
Migratory Bird Treaty Act.''
Response. Only the Federal falconry permit is eliminated - not
Federal oversight of falconry or Federal databases. These regulations
will simply transfer all falconry permitting to the States. States that
certify to the Director that their regulations are in compliance with
these regulations will receive prompt consideration, and will be able
to operate under these revised regulations. All falconers must comply
with these regulations, though the State or tribal regulations may be
more restrictive. The Service will still have law enforcement authority
over most aspects of the practice of falconry, and will compile and
evaluate information on all reported take of raptors from the wild for
use in falconry. Inspections of falconry records, facilities, and birds
will be the responsibility of the States, tribes, or territories.
Because we will collect the same information we have collected in the
past and will retain enforcement authority, except the authority for
inspections, we do not believe that the changes in these regulations
relax Federal oversight of falconry. Our 2007 NEPA analysis (U.S.F.W.S.
2007) confirmed the minimal impact of falconry on wild raptor
populations.
We have implemented electronic reporting that will allow assessment
of take of all raptor species taken from the wild for use in falconry.
We will be able to assess take at the regional or State level. With
this system, we will track the number of permits issued and the number
of each species taken, and will evaluate the effects of take for
falconry on raptor populations (see U.S.F.W.S. 2007). We expect that
electronic reporting will facilitate summarizing and analyzing the
effects of take of raptors for use in falconry.
Issue. National permit system.
``...a national permitting system allows individuals who
may have had their falconry permit [sic] revoked to be identified
should they reapply. Moving to a state permitting system, creates the
potential for an individual to move from State to State and reapplying
without recognition of past problems in the event of a permit
revocation.''
Response. Each State, tribe, or territory will be able to access
the national permittee database for information on an applicant from
another State, so there is no new potential for problems such as the
one suggested by the commenter. See Sec. 21.29 (l) below for
information about data the States, tribes, or territories must keep.
Issue. Federal standards.
``...a federal permitting program ensures that there will
be a standard baseline level of care and expertise required before an
individual is allowed to remove protected wild raptors from the wild
for the sport of falconry. Going to a State permitting system creates
the potential for disparities in the rigor and substance of permit
requirements administered by individual states.''
Response. All permittees must comply with the Federal facilities
and care requirements. A State, tribe, or territory-only permitting
system does not alter this requirement. States, tribes, and territories
have implemented, and will be able to implement, more restrictive
regulations (Sec. 21.29 (b)(1)(iii)).
Issue. State workloads.
``No reduction in paperwork will occur. The State of Iowa
will continue to require paperwork and reporting requirements for
licensed falconers. The U.S. Fish and Wildlife Service's proposed
paperwork reduction appears to simply shift most, if not all, of the
falconry program's administrative burden to participating State
agencies.'' (State agency)
``This section [Unfunded Mandates Reform Act] states that
``Though states may have to revise their falconry regulations to comply
with the proposed revisions, nearly every State already has falconry
regulations in place. Therefore, revisions of the State regulations
should not be significant.'' If adopted these regulations will increase
administrative enforcement burdens on State government.'' (State
agency)
``The department is concerned about the cost of operating
this program and the apparent unfunded mandate being placed on states
by the federal government. We suggest the Service consider ways to
cost-share part of the state's programs and develop a co-management
rather than the proposed federal oversight approach.'' (State agency)
``The U.S. Fish and Wildlife Service is proposing a
significant portion of falconry permitting, record keeping and banding
shift to State agencies. This change will significantly impact our
department's administrative resources including staff hours, material,
and equipment costs.'' (State agency)
``The proposal is of concern to Maine because it seeks to
shift sole burden to the States... We recommend that the Service modify
its current proposal to simply authorize the States to develop their
own, individual regulations governing the practice of falconry without
the requirement [and the burden and cost to the States] that they must
operate under Federal requirements and Federal oversight.'' (State
agency)
``Given that the relatively small number of falconers in
the U.S. (~ 4,000) are spread across the entire country and their
movements and transactions routinely criss-cross State and
international boundaries, it would certainly seem most appropriate and
most efficient for the FWS to continue to fulfill its responsibility to
administer a nationwide system capable of permitting, tracking and
overseeing use of raptors by falconers - especially in light of the
fact that the value of individual birds renders falconry susceptible to
black market endeavors.''
``For the FWS to abdicate its current national role and
require states and tribes to absorb new responsibilities to develop and
administer new permitting procedures, develop additional expertise with
issues related to falconry, develop new database and tracking systems,
administer falconry tests and assume responsibility to monitor falconer
activities and enforce falconry regulations feels like a major unfunded
[[Page 59452]]
mandate to us. The proposed rules would entail new operational expenses
and would also exacerbate our workload problem... Finally, should these
proposed rules be approved, there would be considerable cost to states
to set up systems that could be considered duplicative of the systems
currently maintained by the FWS. Both monetary and manpower costs of
such an undertaking and the inefficiencies associated with interfacing
50+ individual falconry permitting/tracking systems come at a time when
government budgets are being stretched to the limits. The proposed
five-year time period intended to allow for an adequate transition time
could be rendered moot by the lack of new funding to establish new
State programs with internal as well as inter-jurisdictional
capabilities.'' (State agency)
Response. State concerns on this point are surprising, because the
proposal to eliminate the Federal permit was presented to us by the
Association of Fish and Wildlife Agencies with support from every
State. Though some States may have to change their regulations and
their permitting procedures, there should be associated reductions in
paperwork and coordination with our permits offices. We do not believe
the regulation changes put a significant additional burden on the
States. Therefore, we do not believe that this change is an unfunded
mandate. One State agency went on to state, ``The department agrees
that there will be a benefit to falconers and a reduction in paperwork
resulting from this regulatory change.'' We also intend to have
sufficient flexibility in the database to allow States to eliminate
duplicate work.
Issue. Transfer of falconry birds when a permittee moves to another
State may be restricted.
``Currently, Montana law does not allow possession of
raptors without a Montana falconry permit or appropriate federal
permit. For individuals moving to Montana, a resident permit may not be
obtained until residency is established. Currently, birds may be kept
under the existing federal permit until residency is established.
Although interim licensing could be accomplished through recognition of
permits issued by other jurisdictions, the absence of oversight
currently provided by the FWS would reduce the level of confidence that
one jurisdiction would have in permits issued by another.'' (State
agency)
Response. We agree that this is an issue each State must resolve.
Each State, tribe, or territory must decide how to handle birds
possessed by a falconer who moves into a new falconry jurisdiction. The
database will help falconry permitting authorities to check and honor
another State's, tribe's, or territory's permits. Further, all States,
tribes, or territories must meet the standards in these regulations.
Issue. Review of State permitting.
``Under the current falconry permitting process, all that
is required for a state to have the authority to allow the use of
raptors for falconry purposes is; 1) the Secretary's approval of the
state permitting system, and 2) the addition of the state to the list.
There are no penalties to non-compliance to the Federal Regulations,
and to our knowledge, no state has had their [sic] authorities [sic]
revoked. The states are the competent authority when it comes to all
hunting sports, including falconry. This entire section of punitive
measures against the states for non-compliance should be deleted.''
(State agency)
``We recommend that the regulations simply state that the
Service and the states will work to correct all administrative issues
as they arise and do not include program revocation. Given the positive
performance record of the states in administering the joint falconry
program for over 30 years and the state's effective handling of complex
migratory bird issues such as waterfowl hunting, it is difficult to
imagine a complicated falconry problem that would require the Service
to ``suspend'' a state's falconry program certification.'' (State
agency)
``Significant effort was spent to spell out the concise
steps necessary for the Service to regulate the performance of the
individual states' falconry programs, including revocation procedures.
We believe that most of the Services's regulatory processes are
unnecessary and could be simplified by stating that the Service and
states will work cooperatively to address specific administrative
issues.'' (State agency)
Response. We do not expect this to be an issue. Falconry and
falconry permitting have not been significant resource issues for the
Service. We will work with the States to correct issues that arise.
Under the current regulations a failure by a permittee to comply with
the regulations or permit conditions can result in loss of his or her
Federal falconry permit, and loss of the privilege of practicing
falconry. Without some assurance that permitting jurisdictions are
maintaining the falconry standards, the Service may be viewed as
failing to fulfill its obligations under the MBTA.Issue. Suspension of
a State's, tribe's, or territory's certification. ``Please consider
having the Service take over the falconry program in a State that fails
to meet the certification requirements. Releasing, transferring, or
euthanizing falconry birds because a State fails some aspect of the
Service's certification program seems overly harsh on the affected
falconers. It is unrealistic to think that these actions would proceed
under those circumstances.'' (State agency)
Response. The elimination of the Federal permit was considered at
the request of the States. We cannot afford to support permitting
positions just for States that fail in their permitting programs. This
provision remains in place in these regulations (Sec. 21.29 (b)(12)).
Issue. Federal authority under revised regulations.
``The proposed rule offers little clarification on how
enforcement might operate in the future. With additional regulatory and
permitting burdens being placed on the states, we assume that there is
a potential for federal law enforcement to diminish. Even if the state-
federal law enforcement of migratory bird regulations is envisioned to
remain the same, the rule should state this in clear language.'' (State
agency)
``Does the FWS retain the authority to suspend or revoke
falconry permits under 50 CFR. If not, this should be stated. Exactly
what authority does the Service (LE) retain under the proposed
regulations, i.e. with no Federal permit. This should be clarified and
stated in the regulations.''
Response. We do not believe that the regulation change affects law
enforcement substantially, or that there are additional regulatory or
permitting burdens placed on the States, tribes, or territories. With
one exception, Service enforcement of the provisions of the Migratory
Bird Treaty Act and the Bald and Golden Eagle Protection Act (Eagle
Act, 16 U.S.C. 668-668d) are not affected by the regulations change.
The exception is that, because the Service will no longer issue
falconry permits, Service law enforcement officers will not have the
authority to conduct inspections of falconers' records and facilities,
unless the Service officers also are delegated State law enforcement
authority. The Service will not have authority to suspend or revoke
permits issued by the States, tribes, or territories, but compliance
with all provisions of these regulations remains under the purview of
the Service, and falconry permittees are subject to Federal prosecution
for failure to comply with the regulations.Issue. ``When capturing a
golden eagle for falconry purposes the USFWS draft regulation indicates
that the landowner,
[[Page 59453]]
which would include a land management agency (BLM, USFS, BR, State Land
Departments, etc.), must authorize the activity. Neither the States nor
the Service should be authorizing land managers to regulate wildlife.
They do not currently have that statutory authority. Please delete this
line item in its entirety.'' (State agency)
Response. We simply intended to make it clear that these
regulations do not authorize capture of a golden eagle for falconry if
the capture is not allowed by the agency or if entry to private land is
not allowed by the landowner. However, this does not mean that a land
management agency must take special measures or otherwise authorize
take of a golden eagle if the agency's regulations or other language
already allow the take. In the interest of clarity, we changed the
relevant language, which is now in Sec. 21.29 (f)(16).
Issue. Moving birds between falconry and breeding projects.
``Movement of wild-caught raptors between falconry and
propagation permits is a troublesome arena for the department. With the
high desire to obtain wild Peregrine Falcons and Gyrfalcons in Alaska,
this has proved to be a challenge to track. Temporarily allowing the
movement of a bird from a falconry permit to a breeding program will
negate a desire to keep these programs separated rather than
intertwined. This problem is further confused by the proposed
regulatory language that states - ``Regardless of the number of State
or tribal permits that you have, you may possess no more than five
raptors.'' Taking [changes] 15, 16, and the limit on five raptors in
total, we find the intent of the Service to be unclear and confusing.''
(State agency)
``It should be permissible to use falconry raptors for
propagation for less than 6 months out of the year, if a falconer has a
raptor propagation permit.'' (State agency)
Response. We changed the relevant language where it occurred to
make it clear that we mean regardless of how many State, tribal, or
territorial falconry permits one may possess, he or she may have no
more than one raptor if an Apprentice Falconer and 3 raptors if a
General Falconer. A Master Falconer will be allowed to possess 5 wild
birds (3 eagles). We appreciate the States' concern about separation of
falconry and propagation programs. However, allowing the use of birds
already held for falconry in propagation in the off season will not
mean that permittees who hold birds are exempt from either
documentation of the birds or from inspections.
Issue. 180-day trapping period.
``It is unclear what the impacts would be of changing the
180-day-per-year limit on removing raptors from the wild to allowing
states to set their own removal limits. This should be more clearly
explained and analyzed.''
``We disagree with the removal of the 180-day season for
trapping, as it would increase disturbance to nesting raptors. We also
disagree with the removal of the restriction for the number of raptors
a falconer may have during a one-year period sequentially. By removing
this regulation, a falconer could harvest an unlimited number of
raptors. This seems especially inappropriate for Apprentices.'' (State
agency)
``We support removing the 180-day per year limit on take
from the wild and agree that states will appropriately select their own
trapping seasons.'' (State agency)
``The 180-day take period, during which raptors can be
trapped or acquired for falconry, should be eliminated.'' (State
agency)
``Colorado is not supportive of the potential year-round
capture of raptors that could be permissible under this change. Take
should be prohibited during biologically sensitive periods such as
during courtship, incubation, etc.'' (State agency)
Response. We do not believe that removing the 180-day-per-year
restriction on take will have any measurable effect on take of raptors
from the wild. We did not change the 2-birds-per-year allowed take from
the wild by removal of the 180-day take period, and removing the 180-
day language from the regulation will allow each State to better
regulate take as appropriate for the species found in the State and the
times at which they are found there.
We do not understand the assertion that ``a falconer could harvest
an unlimited number of raptors.'' The rule allows a falconer to take no
more than 2 raptors from the wild per year, as a falconer can now.
Further, we do not believe that removing the 180-day take restriction
will lead to increased disturbance of nesting raptors. The States have
regulated take effectively within the 180-day restriction in place, and
can continue to do so if the restriction is removed. Removing the
restriction will allow a State, tribe, or territory to better regulate
take of the species found there.
Issue. Facilities and care of falconry raptors. ``The modified
requirements for facilities and care of raptors held under a State
issues [sic] falconry permit are insufficient. The level of detail
regarding equipment and housing contained in the existing regulations
was not confusing and did not need to be ``simplified.'' They simply
ensured that falconers would have the minimum housing and equipment
required to adequately provide for raptors in their care. These
provisions should not be altered. The proposed changes are if anything
more confusing for their lack of specificity.''
Response. There were very few comments on this issue. We appreciate
the concern for raptors held by falconers, but we believe that the
revised regulations provide sufficient guidance for falconry
permittees.
Issue. Age to become an Apprentice Falconer. Comments on the
proposed reduction from age 14 to age 12 to become an Apprentice
Falconer were about evenly divided. Some people suggested that there
should be no lower age limit; others suggested that the age to become
an Apprentice should be raised.
``The proper maintenance of a raptor in hunting trim is a
challenge to the capabilities of many adults. I don't believe that most
12 year olds wanting to practice the sport (or even 14 year olds for
that matter) possess the maturity, judgment, or refined sense of
responsibility necessary to do justice to the raptor. And they also
lack basic capacity (i.e. ability to drive) for transport of their
feathered charges from residence to hunting area, or to medical
attention.''
``If the age for apprentice falconry was lowered to 12, a
great and positive experience with wildlife could begin.''
``The age of young falconers should be lowered to 12
years. Lots of young lives can be steered toward conservation
practices, respect for the habitat, and the concept of training a bird
through positive rewards. What an idea for life in general!''
``My personal feeling is that if you are not old enough to
drive how can you practice falconry?''
``I support lowering the minimum age for Apprentices to 12
years of age, and the provision to allow Apprentices to use Harris
Hawks.''
``Those who argue that few 12-year-olds are mature enough
to succeed at falconry are correct; however, they miss the point that
established falconers will be under no obligation to sponsor 12-year-
old applicants. The proposed change will be beneficial for those few
youngsters (including children of falconers) who are sufficiently
motivated and have the active support of a sponsor close by.''
``12 years of age is too young, and the current minimum
age of 14 should remain in effect.'' (State agency)
[[Page 59454]]
``We do not support lowering the age of apprentice
falconers to 12 as suggested in 21.29 (b)(3)(i)(A). We are concerned
that a child at the age of 12 or 13 is not adequately equipped to pass
the examination and to properly care for a raptor. Thus, the minimum
age should remain as is. We are also concerned that a child this young
may be less focused and therefore unable to properly train their bird
or provide significant hunting opportunities for their bird. This is
particularly troublesome if the requirements of an apprentice are
changed to allow for possession of Harris's hawks and captive-bred
raptors.'' (State agency)
``The GADNR disagrees with the proposal to reduce the
qualifying age for apprentice falconry to 12 years. Generally we agree
that some persons may be able to handle and care for a bird at age 12
but would suggest that a far greater percentage of 12 year-olds would
lack both the mental focus and physical strength to properly hold and
care for a bird.'' (State agency)
``Our department's professional staff feel lowering the
age to 12 would negatively impact the program. Most 12-year-old boys or
girls have not developed the necessary respect and responsibility to
trap a wild raptor and maintain the bird in a healthy environment. A
person of this young age can become easily discouraged and frustrated
with the challenges of feeding, flying and training a passage raptor.
Unfortunately, falconry sponsors are often located miles away from
their nondriving young apprentice and the lack of one-on-one training/
mentoring can spell failure for many young falconers. Ultimately, our
primary concern should be the welfare of the wild (raptor) resource.''
Response. We found merit in both arguments, but changing the
minimum age to 12 (as in the proposed rule) leaves the decision for a
younger person with his or her parents and with the sponsor, which we
believe is appropriate. Further, any State, tribe, or territory may
choose to limit apprenticeship to older individuals. This rule sets the
minimum age to practice falconry at 12 years (Sec. 21.29
(c)(3)(i)(A)).
Issue. If you are under 18 years of age, a parent or legal guardian
must sign your application and is legally responsible for your
activities.
``We do support the addition of parental signatures and
responsibility for individuals less than 18 years of age as suggested
in 21.29 (b)(3)(i)(B).'' (State agency)
``We disagree with the requirement for a parent or
guardian to co-sign the application of the falconer under 18 years of
age. We should not dictate the parent/child relationship or attempt to
set federal standards for the state's responsibilities (relating to
liability claims).'' (State agency)
``Remove this section from the proposal. State authorities
can handle legal issues locally.'' (State agency)
``We agree that a parent or legal guardian of a minor
falconer should be required to document responsibility through
affidavit.'' (State agency)
Response. Permits language in 50 CFR 13.50 states that ``Except as
otherwise limited in the case of permits described in Sec. 13.25(d),
any person holding a permit under this subchapter B assumes all
liability and responsibility for the conduct of any activity conducted
under the authority of such permit.'' We believe that it is reasonable
to make adults responsible for a minor aware that they could face legal
liabilities associated with falconry. This requirement is left in the
regulations.
Issue. Possession of Harris's hawks by Apprentice Falconers. Some
commenters opposed allowing Apprentice Falconers to possess Harris's
hawks.
``The temperment [sic] of Harris Hawks makes them well-
suited for learning falconry; in fact, one complaint I have
occasionally encountered in discussion of this provision is that Harris
hawks are too easy, so easy that they will spoil Apprentices for other
species of raptors. Since when does it make sense to prevent beginners
to a sport - any sport - from trying something because it was ``too
easy''? I have seen other, more valid objections, such as Apprentices
possibly releasing Harris Hawks in areas well north of their natural
range; I feel this is adequately addressed in the existing language
detailing release of species in areas the species is not normally
found.''
``Although advocacy groups have no problem with this
privilege, TPWD [Texas Parks and Wildlife Department] feels it is the
best interest of the resource to disallow possession of wild-caught
Harris's hawks by the Apprentice Falconer. Their populations are not
considered to be imperiled in Texas but Harris's hawks are prone to
feather plucking and other psychoses if improperly cared for.
Additionally, it is felt that the gentle demeanor (e.g. ease of taming,
or ``manning down'') of this species compared to other apprentice
raptors, such as red-tailed hawks, limits the apprentice's broader
learning environment and training.'' (State agency)
``WDFW supports apprentices being allowed to possess
Harris hawks, but only as passage birds.'' (State agency)
Response. We believe that this question is most appropriately
addressed by the sponsor and the permitting agency. States in which
Harris's hawks occur adequately regulate take from the wild, so
allowing Apprentices to have Harris's hawks should not affect wild
populations.
Issue. Need for a facilities inspection before one can obtain a
falconry permit. We proposed allowing an experienced falconer who no
longer has a facility to have a permit in order to sponsor Apprentice
Falconers, while requiring a facilities inspection for an individual to
house a raptor or raptors for falconry. Many commenters opposed
allowing a person to get a permit without approved falconry facilities.
Some individuals argued that facilities for housing a raptor or raptors
must be a prerequisite for obtaining a falconry permit. Others agreed
with the proposal.
``The department is concerned that new falconers will not
need to have an approved facility in order to obtain a permit.
Constructing an appropriate facility should be a prerequisite for a new
falconer prior to obtaining a permit. Your proposed regulation
indicates that this facility requirement may pose a problem because a
senior, experienced falconer who no longer has a facility or birds
should be able to possess a permit so he/she can sponsor a new
falconer. It seems that you are mixing two different issues through
this apparent simplification. We suggest that an experienced falconer
could maintain a permit with no birds and no facility, but an
apprentice must have an approved facility to obtain a permit.'' (State
agency)
``We do not support allowing permits to be issued to
individuals who do not have housing facilities. Issuing a permit to an
individual without a housing facility puts an additional enforcement
burden on the state. If a permit were issued with the understanding
that the individual did not have housing and would therefore not have a
bird in their possession then in theory there would be no reason to
conduct an inspection or follow up visits. Consequently, these
individuals would be in the best position to illegally obtain and house
a bird in an inappropriate manner.''
``It is admirable for the Service to simplify falconry and
equipment requirements. However, no person should be issued a falconry
permit without first demonstrating that they possess proper
facilities.'' (State agency)
``We currently require inspection of a facility prior to
the issuance of a State falconry license and we would want to keep it
that way. Issuing a license prior
[[Page 59455]]
to an inspection could be very problematic for new license holders - an
apprentice or someone who has moved. The State should be allowed to
require the inspection prior to the issuance of the permit. (State
agency)
Response. We accede to State concerns on this issue. This final
rule requires that a new falconer have his or her facilities inspected
before he or she may be granted an Apprentice permit (Sec. 21.29
(d)(1)(ii)). However, an individual who can no longer fly raptors on
his or her own and does not wish to obtain a falconry raptor should be
able to get a permit without a facilities inspection. Every permittee
must have his or her facilities inspected before he or she may get a
bird, but only Apprentices will have to have their facilities inspected
to get a permit.
Issue. Facilities inspections and commercial trade.
``Some people without facilities who apply for a permit
may be involved in the commercial trade of raptors. Allowing
individuals without facilities to become licensed falconers would
potentially add to the illegal trade in raptors.''
Response. We disagree. If an individual's facilities have not been
inspected, then he or she is in violation of the regulations if he or
she possesses a raptor.
Issue. Experience requirement to advance to General Falconer. Many
commenters suggested that the proposed change in the regulations that
would require more experience to advance to General Falconer was not
warranted.
Response. We accept the prevailing comments on this point, and this
final rule is changed accordingly. To advance to General Falconer, an
individual must be at least 16 years old with 2 years of experience as
an Apprentice Falconer (Sec. 21.29 (c)(3)(ii)). This final rule lowers
the minimum age to be a General Falconer from 18 to 16.
Issue. Increase in the possession limit for Master Falconers. We
proposed to increase the possession limit for Master Falconers from 3
raptors to 5, though only 3 of them could come from the wild. Opinion
was about evenly divided on this proposed change. Many commenters
believed that no Master Falconer could capably handle more than 3
raptors. Others argued that this change is welcome because some people
have sufficient time to care for, and hunt with, more than 3 raptors.
Some individuals argued that there should be no possession limit.
``I support the increase to 3 for generals and 5 for
Master level falconers. The use of Harris Hawks in falconry makes this
change especially useful, as unlike any other species of hawk, the
Harris can be used in multiple numbers like a dog pack. This is the
Harris's natural style of hunting, and should be preserved in the
practice of falconry. Likewise, someone with an infinite amount of
time, game fields and money should be able to fly as many of the other
species of raptors as can be biologically allowed. I do not support the
restriction of the number of wild-caught birds allowed on a general or
Master Falconer's permit unless it is biologically supported.''
``CDOW opposes this proposed regulation. The subjective
nature of this regulation states, ``Many individuals have sufficient
time available to care for and train five raptors for use in
falconry''. However, recent law enforcement action by CDOW indicates
that many falconers, in fact, do not properly exercise the one or two
raptors they currently possess. Based on this observation, the Division
opposes possession of five raptors by any one falconer.'' (State
agency)
``In relation to 21.29 (b)(3)(iii)(c), we do not see the
need to allow Master Falconers to possess more birds. However, we are
not opposed to this change so long as the falconer can properly
maintain the bird and the housing facility is adequate, and they are
required to use all birds for hunting purposes or to show reason why a
bird is not being hunted.'' (State agency)
``There is no reason to increase the possession limit to 5
raptors.'' (State agency)
``Our department's professional staff feel the increased
possession from three to five falconry birds is unrealistic, and may
compromise the birds health and well-being with inadequate attention.''
(State agency)
``Master Falconers should be held to possessing only three
(3) raptors under permit. The public could perceive that we are
unreasonably relaxing our protection of these species.'' (State agency)
``We strongly support maintaining the current three (3)-
bird limit for falconry rather than increasing it to a five (5)-bird
limit. We disagree with the comment under ``Changes in Regulations
Governing Falconry'' 5 that states ``many individuals have
sufficient time available to care for and train 5 raptors for use in
falconry.'' It is extremely time consuming to care for, train,
exercise, and hunt three raptors in one person's possession. Increasing
the possession limit may result in individuals acquiring additional
raptors for collection and novelty purposes, resulting in decreased
care and attention to all raptors in that person's possession. An
increase in the possession limit could also facilitate illegal transfer
of raptors and encourage violations of the possession limit of birds
taken from the wild.'' (State agency)
Response. Take from the wild and protection of the raptor
populations are not significantly altered by this change. We find it
implausible that individuals who cannot care for more raptors than
allowed under the current regulations will get additional raptors just
because they can do so. The regulations require that any bird held for
falconry be well cared for and kept in good facilities. We do not
believe that this possession limit change will do any more to
facilitate illegal activities than does the current possession limit.
This change is left in place in these regulations.
Issue. Increase in the possession limit for General Falconers. Some
commenters requested that we increase the possession limit for General
Falconers.
Response. Increasing the possession limit for General Falconers
does not increase the allowed take from the wild, nor does it affect
wild populations. We increased the possession limit for General
Falconers from two to three raptors.
Issue. Possession limit and take from the wild.
``Another major concern CDOW recognizes with this proposed
regulation is that the statement ``Allowing the possession of five
raptors does not change the allowed take from the wild or the current
limit on possession of birds taken from the wild'' is misleading.
Proposed Service Regulation 21.29 (d)(2)[ 6987, I] states, ``A falconry
bird is considered to be taken from the wild only by the person who
originally captures it; the bird is not considered to be taken from the
wild by any subsequent permittee to whom it is legally transferred.''
This proposed regulation will allow a falconer to legally possess five
wild birds, as long as the falconer is a secondary, or subsequent
recipient of two of the wild-caught birds. CDOW contends that a wild-
caught bird be determined as any bird caught in the wild, regardless of
legal transfer of ownership. Using the numbers that the FWS provides in
this document, this proposed Service Regulation increased by 2 the
number of raptors that each falconer could take from the wild,
resulting in a net take of as many as 8,000 raptors. This issue of
transfer and possession of birds ``considered to be taken from the
wild'' must be clarified by the FWS. If the ``wild bird not being a
wild bird'' if transferred applies to both the take and
[[Page 59456]]
possession restrictions, as applied to the subsequent licensee, then we
believe it will lead to additional take problems as we have outlined
above. If it applies to the take restriction only, then it may not have
as severe an impact. Regardless of the interpretation, the CDOW
believes the transferred ``wild'' bird must still count against the 3
wild bird possession limit as applied to the subsequent licensee.''
Response. The current regulations allow take of two raptors from
the wild each year by each permittee, as do these regulations. They
state that a bird taken from the wild is always considered a wild bird,
so such a bird would count against the number of wild birds that a
falconer can possess. The new regulations do not change the level of
take that a falconer is allowed each year, but we recognize that, for a
few years, they might lead to a slightly increased total of raptors
taken from the wild.Issue. ``The state's coordination with the USFWS
will increase as the regulations call for monthly transfer of state's
falconry data.'' (State agency)
Response. We disagree. These regulations require only that States
submit information on new or changed falconry permits - the same
information they have exchanged with our regional permits offices. We
believe that providing updates on falconer information will require
less work than do the current exchanges with our regional migratory
bird permit offices.Issue. ``Coordination regarding out-of-State
falconers will become more complex as, instead of 7 Regional USFWS
offices, there will be an unknown number of state/tribal licensing/
administrative jurisdictions.'' (State agency)
Response. We disagree. The electronic permits system will be
accessible by every entity that issues falconry permits. We believe
that checking the credentials of out-of-State falconers will be easier.
Issue. Temporary care of falconry raptors by other individuals.
Many commenters suggested that we should allow individuals other than
the permittee or another falconer to care for falconry raptors
temporarily. Doing so would allow family members to care for falconry
raptors while the falconer is traveling, for example.
Response. We agree with the prevailing comments on this point, and
added this provision to the final regulations at Sec. 21.29 (d)(7).
Issue. More time to submit 3-186A reports. Some commenters
suggested that more time be allowed for submitting 3-186A forms
reporting take from the wild. They noted that because falconers often
must travel to capture a bird for falconry, the 5-day reporting
requirement might not be practical, particularly in light of the
requirement to report electronically.
Response. We understand this concern. This final rule changes the
reporting time to 10 days. However, this change does not mean that one
can, for example, capture a raptor from the wild, keep it for 9 days,
release it on the tenth day, and never report acquisition of the bird.
A falconer must report acquisition, loss, or transfer of a falconry
bird at the first opportunity to do so.
Issue. Use of falconry birds in education programs. Most commenters
who addressed this issue supported this addition to the regulations,
but a few did not.
``We strongly oppose allowing falconers to utilize wild
raptors held under a falconry permit for educational activities without
first obtaining a Special Purpose Possession/ Education (Live) Permit
from FWS. Falconry and environmental education are different endeavors
and the qualifications for possessing live birds for each of these
purposes are measured by different standards. By including this
provision in the new regulations, FWS is essentially making the
falconry permit a dual purpose permit for both falconry and education
and abdicating responsibility for both to the states. Doing so
eliminates entirely the scrutiny with which FWS reviews live bird
educational permit applications including review of the types of
presentations for which the birds will be used. Furthermore, the
criteria listed in the proposed falconry regulations for using falconry
birds for education are different and less stringent than those issues
under a Special Purpose Possession/ Education Permit. For example, the
falconry regulations do not include provisions that bird presentations
may only be given at public facilities, that presentations in private
homes and businesses is not allowed, that a minimum of 12 programs per
year must be presented and that any presentation must be accompanied by
a sign indicating that possession and exhibition is by permission of
FWS. If falconry birds are to be used in educational presentations,
falconers should have to meet the requirements for a Special Purpose-
Possession/ Education Permit.''
``The State of Indiana currently requires an educational
permit in addition to the falconry permit if a bird is possessed under
a falconry permit and used in conservation education programs. The
State should have the ability to require this due to additional
provisions that are needed to provide for the safety of the bird and
the public, along with reporting requirements. We have several
falconers who use their birds in conservation education programs.''
(State agency)
Response. Falconers have been allowed to give educational
presentations using their falconry raptors for many years. The care of
their birds is spelled out in these regulations. Falconers can provide
a service by educating the public about the biology, ecological roles,
and conservation needs of raptors and other migratory birds. Further,
the regulations state clearly that the falconer must use the bird
primarily for falconry. We do not see that the requirements for another
permit type are relevant here, because we are only allowing a secondary
beneficial activity with falconry birds. We see no need to change this
provision.
Any State, tribe, or territory has the authority to require an
additional permit to use falconry birds in education.
Issue. Recouping presentation costs.
``We [I] oppose the provision that would allow falconers
to charge for presentations using raptors held under a State issued
falconry permit. It is one thing to allow professional environmental
educators to charge for their services but entirely another to allow
falconers who hold their raptors for an entirely different purpose to
charge for these types of activities. FWS should limit the ability to
charge for presentation to only those who have met the requirements of
a Special Purpose - Possession/ Education (Live) Permit. This would
include falconers who have chosen to meet this standard.''
``As stated in Section 21.29 (e)(8), we support allowing
the use of falconry birds for conservation education programs but
without a fee, so long as falconers are required to use the birds in
hunting.'' (State agency)
``Falconers should be allowed to conduct conservation
education talks with raptors and charge a fee for this service.
Restrictions on commercial ventures should apply.'' (State agency)
Response. Although we believe that falconers have generally not
done so, we believe it is reasonable for them to be able to recoup
costs associated with giving an educational presentation. Falconers are
allowed to recoup costs for conservation education programs - not to
engage in profit-making endeavors. This provision is left in place in
these regulations (Sec. 21.29 (f)(8)(iv)).
Issue. Money-making endeavors with falconry raptors. Many
commenters objected to the provisions in the proposed rule disallowing
most commercial activities with falconry
[[Page 59457]]
raptors. However, most States supported the prohibition.
``We support the prohibition of using birds for
entertainment, advertisements, promotion/endorsement of products,
merchandise, goods, services, meeting or fair, or as representation of
any business, company, corporation, or other organization, for movies,
commercials or commercial ventures.'' (State agency)
Response. These regulations allow only commercial activities
directly related to falconry. We may address the broader question of
commercial use of migratory birds in the future.
Issue. Regulation of take of golden eagles for falconry. Some
commenters discussed the classification of eagles. Others requested
that we allow take of golden eagles for falconry in broader
circumstances.
``Golden eagles should be classified as raptors. The
populations of golden eagles in western North America are large and
stable. If there is no biological problem with the species, and there
is no threat to human health or safety posed by trained golden eagles,
they should be managed like every other species of raptor for which
take or captive breeding is allowed under the falconry program. States
should develop the administrative oversight for the take of wild golden
eagles, not the Service nor land-management agencies.''
Response. These regulations change management of take of golden
eagles, largely as suggested by the commenter; they change management
of golden eagles and take of them from the wild to be largely the same
as other falconry take. Take of golden eagles for falconry is limited
by the provisions of the Eagle Act, and can only occur in depredation
areas delineated by U.S.D.A. Wildlife Services or a State
governor.Issue. ``Will this encourage an increase in applications for
depredation permits in order to allow more capture of golden eagles?
More information on why this restriction has been generated is needed.
If the purpose is to reduce take of golden eagles because of limited or
declining numbers, or some other ecological factor, then this should be
clearly stated.'' (State agency)
Response. Under the Eagle Act, take of golden eagles for use in
falconry can only occur in depredation areas (not with depredation
permits). These areas are declared by the U.S. Department of
Agriculture's Wildlife Services program, or at the request of a State
governor. We foresee no change in the number of depredation areas
declared because of a change in these regulations. We will continue to
monitor take of golden eagles for falconry and may take appropriate
action if we determine that take is not compatible with the
preservation of the golden eagle.
Issue. Reporting take of golden eagle trapping activities. Some
commenters were opposed to the annual reporting each year on golden
eagle trapping activities required in addition to 3-186A reports.
Response. We agree with this argument. Information on take of
eagles will be compiled through the electronic reporting system. This
requirement is deleted from the final rule.
Issue. Eagle trapping notification. Some commenters disagreed with
the requirement that the appropriate Service law enforcement office be
notified before an individual tries to capture an eagle in a
depredation area for use in falconry.
``The draft allows the states to have more control over
the use of golden eagles for falconry, however the proposed regulations
present procedures for the falconer to take to advise the regional
USFWS Law Enforcement Office, the U.S.D.A. Wildlife Services manager
and receive a receipt of confirmation prior to capture, and then report
on the number of birds captured, released, etc. We believe that this
additional administrative oversight is excessive and needs to be
deleted. Since the states are given the responsibility they should
develop the administrative mechanisms of ensuring the activity is
conducted in a legal manner and in the best interest of the resource.''
(State agency)
Response. Under the final rule, an individual is simply required to
notify the Service before trapping. Knowledge that a person will
attempt to capture an eagle in a particular location could save a
Special Agent considerable time and effort investigating a report of an
individual attempting to capture an eagle. This notification
requirement is left in place in this regulation, but the relevant
language was rewritten to increase clarity.
Issue. Transport of falconry raptors to Canada and Mexico. Many
individuals who responded to the proposed rule suggested that we should
implement a ``passport'' system as has been considered for Convention
on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) regulations (50 CFR 23).
Response. A falconer can get a CITES passport (also called a ``pet
passport'' for a falconry bird (see http://www.fws.gov/le/ImpExp/
faqs.htm). There is no need to change the language in these regulations
governing transport to Canada or Mexico.
Issue. Posting bond for permit or regulations violations. Many
commenters suggested that we change the regulations to provide for
posting of bond for alleged regulations or permit violations.
Response. We agree that bonding would be reasonable, but the MBTA
does not allow posting bond in lieu of seizure. The relevant language
in 16 U.S.C. 706 is ``All birds, or parts, nests, or eggs thereof,
captured, killed, taken, sold or offered for sale, bartered or offered
for barter, purchased, shipped, transported, carried, imported,
exported, or possessed contrary to the provisions of this subchapter or
of any regulation prescribed thereunder shall, when found, be
seized...'' (italics added).
Issue. Interstate issues.
``The areas of the falconry industry that need the most
scrutiny are the interstate issues. Obviously, the FWS with its current
permitting system is better equipped to regulate and enforce issues
that encompass multiple states. In the absence of an overarching role
by the FWS, enforcement activities related to falconry in the U.S.
could be expected to become more piecemeal and time-consuming and
ultimately less efficient and less effective.''
``No State should be allowed to interfere with the
interstate transport of raptors legally held for falconry by licensed
falconers.'' (State agency)
Response. Any State may implement restrictions on take of raptors
that are more restrictive than the relevant Federal regulations. We
encourage them not to be more restrictive on transport of raptors.
Issue. Transfer of falconry raptors to raptor propagation permits.
Many commenters objected to the time restriction on transfer of birds
taken under falconry permits to propagation permits. Some commenters
were especially concerned about the restrictions on use of small
raptors that this provision adds because small raptors may be useable
in raptor propagation at age 1.
``Wild caught raptors taken under a falconry permit and
then transferred to a propagation permit for sale of their progeny is a
substantial primary commercialization of falconry raptors and should be
prohibited.'' (State agency)
Response. We agree that take from the wild under one permit type
and prompt transfer to another permit type should not occur. However,
for two reasons we disagree with the assertion that transfer of
falconry birds to propagation permits should be prohibited. First, we
have determined that the take of raptors for
[[Page 59458]]
falconry (and for raptor propagation) has no significant impact on
raptor populations. Second, limiting such transfers would preclude use
of raptors taken from the wild in breeding projects when they cannot be
flown in falconry for some reason. We left the transfer provision with
time restrictions in place in this final rule.
The regulations need to ensure that birds taken from the wild for
use in falconry are not immediately transferred to propagation. Even
so, we understand the concerns about restrictions on use of small
accipiters and falcons, and have changed the language in this paragraph
to allow transfer of some species sooner than the 2-year restriction
for most species (Sec. 21.29 (f)(5)(i)).
We will maintain a nationwide falconer database and a database on
take of wild raptors. Every falconry permittee must operate within the
bounds of these regulations and his or her State or tribal regulations.
We also will retain the authority for law enforcement actions, so we
expect no reduction in the effectiveness of the governance of falconry.
Issue. Facilities inspections. Many commenters objected to the
added provision requiring that a person who allows a falconer to keep a
mews on his or her property be made aware that the facilities can be
inspected by law enforcement officers.
``Does being a ``permitted activity'' exempt permittees
from the general body of search law?''
``Proposed section 21.29(c)(9) subjects falconry bird(s),
facilities, equipment, and records to an unqualified right of
inspection (referred to below as post-initial inspection) by government
officers at any reasonable hour. The provision completely circumvents
the protections of the United States Constitution against unreasonable
search and seizure. But even outside of Constitutional considerations,
a greater abuse of the citizenry by government is hard to imagine. This
entire provision should therefore be eliminated along with the related
provisions of section 21.29(c)(2)(iii).''
``The most important change I would urge you to consider
is that inspection of private property without the proper warrants is
always unconstitutional.''
``Without probable cause and securing a warrant, this
violates the current search law.''
Response. Every falconry permittee agrees to inspection of his or
her facilities, records, and raptors when he or she applies for a
falconry permit. Because the permittee has done so, we disagree with
these assertions. Inspections provided for in this rule do not violate
protections of the Constitution. The language about inspections was
repeated in these regulations in part because of the added provision
allowing falconry birds to be kept on property not owned by the
falconry permittee. We have left it in place (Sec. 21.29 (d)(2)(ii)).
Issue. Some commenters felt that the language in 50 CFR 13 does not
provide sufficient protection for falconry birds.
``Most agents are inexperienced in the handling of
raptors. The presence of the falconer [during an inspection] would
prevent loss, injury or undue stress on the bird.''
Response. We have added language to these regulations stating that
falconry facilities and raptor inspections may only be done in the
presence of the permittee (Sec. 21.29 (d)(2)(ii)).
Issue. Use of microchips rather than, or in addition to, bands.
Some commenters suggested that we allow implanting of microchips in
lieu of required bands.
Response. We agree that this is a viable option, and we added the
use of ISO (International Standardization Organization) - compliant
microchips in lieu of, or in addition to, required bands (Sec. 21.29
(c)(7)(i), (ii)).
Issue. Banding of some raptor species taken from the wild. Many
commenters opposed the additional requirement to band goshawks taken
from the wild and, in fact, opposed any banding of birds taken from the
wild. A few commenters (including State agencies) suggested that all
birds taken from the wild for falconry should be banded.
``The banding requirement is being pushed by people who
think the sky is falling and that... raptors need to be protected from
falconers. The sky is not falling, raptors do not need to be protected
from us. There has never been a proven instance where bands have been
removed and reused or birds have been trapped to replace one that has
died. The banding process adds to the work load that many states
complain about and should not be required at the federal level except
for captive bred birds.''
``I support the idea of banding any wild raptors the
Service feels are ``sensitive,'' so as to better keep track of these
birds. Banding birds is really not that much of a hardship.''
``We would like to see the requirement that all birds used
for falconry be banded.'' (State agency).
``[A]ll falconry, conservation education and propagation
birds should be banded.'' (State agency)
``We support banding of all wild caught goshawks and would
encourage banding requirements for all species under Section 21.29
(b)(7)(i).'' (State agency)
``There may be some justification for tracking high-
profile species, like gyrfalcons, peregrines and golden eagles, which
are taken from the wild. However, there is no biological reason to band
any wild raptor species known to have stable populations within the
United States. The Service has a 30-year history of problems with the
bands that it provides for identifying raptors. These bands become
brittle and break over time. They fall off raptors and they are known
to damage the tarsus of individual raptors, which necessitates the
bands being removed. This presents a challenge to enforcement and puts
falconers in legal jeopardy through no fault of their own. At best,
this is an archaic system of bird identification. Superior alternatives
would be: micro-chip implants (PIT tags) for larger raptors; digitized
photos of foot-scale patterns (individualized finger prints); tattoos;
and blood samples for DNA marking. Any of this information could be
stored electronically, along with all of the other pertinent
information that documents the raptors being held under a person's
falconry permit.''
Response. Banding has been required of only 4 species for which
there are management or law enforcement concerns: Harris's hawks,
peregrine falcons, gyrfalcons, and golden eagles. This final rule
requires banding of goshawks taken from the wild and removes the
requirement for banding golden eagles. Very few golden eagles are taken
from the wild by falconers, and that take is in very specific locations
and circumstances. We do not believe there is any significant knowledge
to be gained from requiring banding of these eagles.
We view banding of goshawks, Harris's hawks, peregrine falcons, and
gyrfalcons as a small burden for falconers, and the banding may be of
help to law enforcement officers. Because take from the wild for
falconry has no significant impact on raptor populations (U.S.F.W.S.
2007), we do not require banding of other species. A State, tribe, or
territory may require banding of any species taken from the wild for
use in falconry (Sec. 21.29 (c)(7)(i)).
Not all species are banded solely for biological reasons. Service
law enforcement efforts may be aided by banding of some species. These
regulations also have a provision for dealing with banding of species
and individual birds for which the bands are a problem, and a band that
is lost or broken is readily replaced. We agree
[[Page 59459]]
with the assertion that there are alternatives to bands available, and
have added a provision for microchipping in lieu of, or in addition to,
banding ((Sec. 21.29 (d)(7)(i), (ii))).
Issue. Let-it-lay provision. Many commenters asked for a provision
allowing a falconry bird to feed on prey that the falconer did not
intend to have the raptor hunt.
Response. We recognize that unintended take of other species may
occur, and have added a provision covering this issue to these
regulations.
Issue. Electronic reporting. Many commenters asked that we allow
paper reporting on 3-186A forms.
Response. We have added this provision. At the discretion of your
State, tribe, or territory, you may submit completed paper 3-186A forms
to your permitting authority. The State, tribe, or territory must then
enter the information from the forms into the electronic reporting
system. Your State, tribe, or territory may require that you submit 3-
186A forms electronically or on paper.
Issue. Electronic signatures on 3-186A forms.
``Electronic reports should have a provision indicating
that information represented is true and correct, with some form of
verifiable electronic signature. Electronic reports must have a
narrative of the location of the capture or loss of a bird, not just
GPS coordinates. By completing a form with a narrative of the take
location, as well as UTM coordinates, and signing the document CDOW
will have the ability to account for legal possession of birds and if
necessary recourse for possible law enforcement investigations.''
(State agency)
``Electronic reporting by falconers brings up several
questions. Are falconers responsible by law for false information
reported? This is probably not true according to current Montana law.
It is likely that assumption of current FWS responsibilities by states
and tribes would require time-consuming and expensive legislative
initiatives and administrative rule-making processes.'' (State agency)
Response. The electronic reporting system merely implements an on-
line version of the current 3-186A form. The same provisions for
reporting on paper with the current 3-186A form will still apply.
However, we recognize State concerns about signed forms. To avoid the
expense and complication of electronic signatures on 3-186A forms, we
will either add a signature box to the forms, and direct the permittee
to print the completed form, sign it, and mail it to his or her
permitting agency if the agency requires a signed form; or we will add
language to the 3-186A form telling the submitter that clicking on a
submission button is the equivalent of signing the form.
Issue. Restrictions on falconry activities in the vicinity of
endangered species. Many commenters disagreed with this addition to the
regulations. Some argued that this provision would virtually eliminate
falconry in much of the country.
``The section on hacking birds in the ``vicinity'' of
threatened or endangered wildlife should be omitted as it is so open to
interpretation that it could lead to serious law enforcement issues and
as written, would make falconry impossible to practice anywhere without
risking breaking that rule.''
``Another issue that concerns me is the proposed
restriction on hawking and hacking in the vicinity of threatened or
endagered [sic] species. This regulation creates yet another law
enforcement gray area that could potentially make it impossible to fly
a bird anywhere. Requiring a falconer to be aware of the presence of
such threatened or endagered [sic] species before flying his or her
bird is far from practical and is not required of any other regulated
sportsmen. Along similar lines giving that good falconry requires
controlling as many variables as possible the falconer cannot always
make sure his or her bird pursues only the intended quarry.''
``We acknowledge the practical limitations of monitoring
such activities but would rather demonstrate our endorsement of
scrupulous behavior by falconers by having such language in the
regulations rather than risk an interpretation of implicit lack of such
concern if the language were not here.'' (State agency)
Response. We doubt that the need to exercise caution when
conducting falconry activities or hacking falconry raptors will
eliminate the practice of the sport. This requirement means only that
you observe due caution when considering the practice of falconry - the
same obligation faced by other citizens in their activities. It is left
in place in these regulations (Sec. 21.29 (f)(17)).
Issue. Apprentice examination development and administration.
``There is a need for uniform standards governing testing.
The proposed rule would allow states to revise their falconry
examinations without federal approval once the State is certified. No
explanation is provided for this change. All falconers should have to
meet a basic, standardized level of knowledge. Allowing states to
modify falconry exams without federal review creates a potential for
disparities in the rigor and substance of individual State testing
approaches. At bare minimum we would recommend that FWS create a
standard examination to which State could add but not reduce.''
``The exam should be standard, but administered by the
States.''
``We support removing the need to approve revisions of the
examination.'' (State agency)
Response. Inasmuch as all States, tribes, and territories that
allow falconry must meet the standards in these regulations, we do not
believe that they will test to a less rigorous level. Further, we
believe that because the species present in different locations vary,
there is merit in letting each permitting authority test on relevant
and current information. However, the regulations require our approval
of changes in a State's, tribe's, or territory's falconry examination.
Issue. Regulation of captive-bred birds. Some commenters argued
that the regulations were more extensive than necessary for birds that
do not come from the wild.
``I believe that captive raised raptors are not part of
the wild resource and should not be regulated as such. I think that the
seamless band and 3-186a form is proof enough that they weren't wild
taken and should be exempt from these regulations.''
``For the most part, the effort to regulate captive bred
raptors should be abandoned.''
``I also believe that captive bred birds should be allowed
to be held in any number by and by any permit level of falconer since
the captive bred birds were never wild, and that only wild-caught bird
numbers should be limited when biologically necessary.''
Response. We believe that regulation of captive-bred migratory
birds is necessary for us to fulfill our mandate to protect migratory
bird populations. However, we agree that possession of captive-bred
falconry raptors has no impact on wild populations. Therefore, we will
not limit the number of captive-bred birds a Master Falconer may use in
falconry. However, we have not removed a falconer's responsibility to
maintain captive-bred raptors under the same humane and healthful
conditions as raptors taken from the wild.
Issue. Captive-bred raptors for Apprentice Falconers. We proposed
to allow an Apprentice Falconer to possess a captive-bred, non-
imprinted raptor. This issue also generated many comments. Most people
who commented on this issue argued that we should require an Apprentice
to trap a bird from the wild so that he or she
[[Page 59460]]
might be better able to trap a lost bird, and that the Apprentice
should not be allowed to possess captive-bred raptors. Further, some
commenters suggested that captive-bred raptors are inappropriate birds
for Apprentices to handle and train. Some commenters opined that we
should not regulate such possession. Others argued that Apprentices
should be able to possess birds from any source.
``I also support the provision allowing Apprentices to
have captive-bred, non-imprinted birds of the allowed species. While
captive-bred birds are not ideal for an Apprentice, they will make the
sport more accessible and expand the options available to beginners.
Falconers who do not wish their Apprentices to fly captive-bred birds
can enforce their wishes simply by refusing to sponsor an Apprentice
who does not obtain birds in the desired manner; they should not
attempt to use regulation to force all other Apprentices to fly only
birds trapped from the wild. Although I do not yet sponsor Apprentices,
I would consider captive-bred birds to be a last resort, not the
first.''
``We disagree that Apprentice Falconers do not need to
capture a raptor themselves [sic]. We understand the concern associated
with the lack of trapping experience of an Apprentice Falconer,
however, the proposed regulation is commonly known as party-hunting,
and is illegal in most States. This action will also inhibit the
sponsor-Apprentice training by eliminating an experience the Apprentice
will need to become a knowledgeable falconer.'' (State agency)
``We do not support the change to allow Apprentice
Falconers to possess captive-bred birds as listed in 21.29
(b)(3)(i)(H). Unskilled falconers are the most likely group to
improperly train or lose their bird [sic]. If they possess a wild
caught passage bird such as a Red-tailed Hawk loss of the bird will not
have a negative impact on wild populations and the bird is well
equipped for survival in the wild. Wild caught raptors are typically
the most appropriate birds for falconry because they are well suited to
hunting and capturing local game species. Allowing individuals to
choose from a wide array of species complicates their training efforts
and may even make it more difficult for them to successfully train and
hunt with their falconry bird. We do not see a need to allow
individuals to have captive-bred raptors at the apprentice level.''
(State agency)
``Apprentice Falconers should be required to trap wild
hawks native to North America. That is to say, flighted juvenile
raptors independent of their parents. There is no logic in allowing an
Apprentice to possess a captive-bred raptor when, under the proposed
changes, they still cannot legally acquire a nestling raptor from the
wild.'' (State agency)
``Apprentices should not possess captive bred raptors.
They should continue to be restricted to capture of wild passage
raptors. This is consistent with basic apprentice management whereby
they possess wild caught raptors that are capable of surviving in the
wild if/when they escape or are released.'' (State agency)
Response. We understand the points made by those who were concerned
about this change. However, captive-bred birds do not affect wild
populations of raptors, so we believe it is reasonable to leave the
decision on an appropriate bird for an Apprentice to the Apprentice and
his or her sponsor. In addition, any State, tribe, or territory may
further regulate possession of captive-bred raptors by Apprentices. We
leave this provision in place in these regulations (Sec. 21.29
(c)(3)(i)(E)).
Issue. Species for Apprentice Falconers. Some commenters favored
allowing Apprentices to possess any species that General Falconers may
possess, arguing that the impact of take by Apprentices on wild
populations would be extremely small.
``We disagree that an Apprentice can possess any species
of captive-bred Falconiformes. This would allow Apprentices to have
peregrines, which are more difficult to train for falconry than red-
tail hawks or American kestrels.'' (State agency)
``All species limitations applied through the apprentice/
general/Master classification should be eliminated even with respect to
wild-caught raptors. [T]he delineation of some species as acceptable
for certain license levels and some not is arbitrary and capricious and
should be eliminated.''
``The framing of the recommended change is inconsistent
with what the proposed regulations actually state and is not a
representative statement of the change. The proposed change actually
permits a substantial increase in the species which could be possessed
by apprentices which is not reflected in this framing.'' (State agency)
Response. Though Apprentices were allowed only one additional wild-
caught species in the proposed rule, we proposed that they be allowed
many species of captive-bred raptors. We changed the language in this
final rule to clarify this point and added to the species Apprentice
Falconers may possess. There are only a few hundred Apprentice
Falconers in the U.S. at any time. We believe that take of wild raptors
by these individuals would be without discernible impact on any
population, particularly since the abundant red-tailed hawk is
considered by many falconers to be the best bird for an Apprentice to
use in starting falconry. Having considered this issue, we have opened
the list of species available to Apprentice Falconers to include all
species except golden eagles and national species of conservation
concern (Sec. 21.29 (c)(3)(i)(E)).
Issue. ``We believe there needs to be a U.S. residency requirement
for falconry permit applicants to harvest a wild raptor. Residency
requirements are in place for hunting, trapping, and fishing licenses
(i.e. permits) in all States. We believe that all new residents must
first establish residency within the U.S. before they are issued a
permit to harvest raptors for falconry purposes. If residency is not
mandated, we encourage the development of an alternate permit for non-
U. S. residents to harvest a wild raptor.''
Response. Take of raptors is well regulated by the States, and we
see no need to invoke such a requirement.
Issue. Hacking'' of raptors held for falconry.
``In accordance with long-standing Service regulations, it
should be clearly stated that hacking is an approved method for
falconers to condition raptors for falconry.'' (State agency)
``We do not support the practice of hacking falconry birds
under Section 21.29 (e)(2). One of the primary concerns our Biologists
have about the sport of falconry is the opportunity for a non-native
bird to be released into the wild. Our agency is concerned that these
birds may potentially introduce diseases to our wild raptors, may
attempt to breed with local populations or may have a negative impact
on wild raptors either through aggressive behavior or depletion of the
existing prey base. For these reasons, we would be opposed to allowing
a person to intentionally release their falconry bird into the wild for
any period of time.'' (State agency)
``Good inclusion to specifically address `hacking' since
this has been missing in current regulations and is being increasingly
used. WDFW recently did an analysis of this to permit in Washington.''
(State agency)
``Release of hybrids, including short-term hacking, should
be illegal.'' (State agency)
``We ask for a clearer definition of the term ``hacking.''
It's [sic] use here apparently refers to a hunting/training mechanism
for the raptors. Normally,
[[Page 59461]]
the term hacking does not normally refer to a ``temporary'' release of
a raptor, but conditioning for a permanent release back into the
wild.'' (State agency)
Response. The commenters are correct. The term ``hacking'' has been
used to mean both preparing birds for release to the wild, and (in
falconry) temporary release of a falconry raptor to the wild to force
it to learn to hunt on its own. In these regulations, we are concerned
only about the latter definition. Wild-caught raptors used in falconry
would be unlikely to need hacking, but some captive-bred raptors may
benefit from it, and we doubt that it would have a significant impact
on wildlife populations or the environment. We believe that the
safeguards for release of hybrid raptors (two transmitters are
required) are sufficient to protect wild populations. However, any
State, tribe, or territory may restrict hacking or the release of
hybrid raptors.
Issue. Non-native species. ``[W]e request that the USFWS consider
the potential detrimental impacts to Colorado raptors through the
importation of non-native species and the resulting spread of disease,
as well as the commercialization of raptors.''
Response. The regulations at 50 CFR 21.12 are regulations for
import to, and export from, the United States. The import of raptors
into a State may be further restricted by the State.Issue. ``The CDOW
perceives that the proposed Service regulations could result in some
negative impacts to wild raptor, including golden eagle, populations.
The outcome of the cumulative impact of the proposed changes is
unknown, but is likely to increase take. (These proposed changes
include, are not limited to: increase in the number of birds each
falconer may hold, a decrease in the minimum age for Apprentice
Falconers, and a proposed change in the ``definition'' of ``bird taken
from the wild,'' in which this classification is dropped once the bird
has been transferred). The USFWS does not describe any analysis
suggesting what the increased take would be or that is increased take
would have no negative impacts. Native raptors are highly valued by
many of our constituents, and we would find it difficult to defend an
increase in take without an analysis of its impact.'' (State agency)
Response. We disagree. The definition of ``wild'' raptor is
intended to clarify these regulations, and has no effect on the number
of birds taken from the wild. Further, the term ``wild'' raptor is not
``dropped once the bird has been transferred (Sec. 21.29 (f)(1)).''
This rule states that a raptor taken from the wild ``is considered to
be taken from the wild only by the person who actually captured it,''
but that any raptor removed from the wild is always considered a
``wild'' bird. We believe that the changes in this rule will have very
minimal impacts on raptor populations (see U.S.F.W.S. 2007, in which we
determined that most take for falconry is a tiny fraction of what the
populations could sustain). We also believe that the changes will be
compatible with the preservation of the golden eagle.Issue. Clarity of
the regulation. ``For some regulations the question and answer format
does not work well, for example ``How may I take raptors from the wild
for use in falconry?'' The answers are embedded in the various
responses (i.e. by someone with a permit, by someone without a permit
but in the presence of another person with a permit, etc ). In many
instances the regulations would be more direct and clearly stated in
bullets or a different format. To further complicate issues, regulatory
information is found in multiple sections (for example, possession of
eagles for falconry).'' (State agency)
Response. We agree with these comments, and we changed the wording
of many parts of this rule to respond to suggested changes. We also
reorganized the regulations to address the concerns about regulations
in multiple sections.
Issue. Permission to trap golden eagles.
``Persons wishing to trap golden eagles should have
permission from the landowner or land management agency to trap ANY
bird.'' (State agency)
``Landowner permission must not be a condition to trap a
golden eagle or any other raptor. This gives wildlife management
authority to land management agencies with no statutory wildlife
authority. Private lands access is another issue and is regulated by
State trespass laws.'' (State agency)
``When capturing a golden eagle for falconry purposes the
USFWS draft regulation indicates that the landowner, which would
include a land management agency (BLM, USFS, BR, State Land
Departments, etc.), must authorize the activity. Neither the States nor
the Service should be authorizing land managers to regulate wildlife.
They do not currently have that statutory authority. Please delete this
line item in its entirety.'' (State agency)
Response. We believe that this issue was made clear in paragraph
(e)(14) of the proposed rule for all falconry, and in paragraph
(b)(3)(iv)(F)(3) for eagle trapping. We simply intended to make it
clear that these regulations do not authorize capture of a golden eagle
for falconry if the capture is not allowed by the agency or if entry to
private land is not allowed by the landowner. However, the relevant
language is further clarified in this final rule (Sec. 21.29 (f)(16));
the regulations state that a falconer does not need special or written
permission to capture, fly, or release a falconry bird on public lands
if the action is authorized there. A land management agency need not
take special measures or otherwise authorize take of a golden eagle if
the agency's regulations or other language already allow the
take.Issue. ``The State wildlife agency should also be notified prior
to trapping golden eagles.'' (State agency)
Response. Any State or tribal agency can require this notification
of permittees.Issue. ``There needs to be a clear distinction who will
be administering the propagation permits. As we understand it, the
USFWS, not the states, will administer these permits.'' (State agency)
Response. This rule does not change our administration of
propagation permits; we will continue to issue them.Issue. Capture
requirements. ``[Paragraph] (d)(3)(vi)(A) [6987,3] Sub-section (v)
appears to be contradicted by (vi)(A) in that the disposition of the
bird is at the discretion of the State Under (v) and appears to be
specifically determined by the guidelines given under (vi)(A). One of
these proposed changes needs to be changed to bring them into
agreement.'' (State agency)
Response. Paragraph (d)(3)(vi)(A) referred to initial capture of a
raptor from the wild. Paragraph (v) referred to recapture of a lost
falconry bird.Issue. ``Individual clutch size varies between species &
the requirement for leaving birds in the nest should be set at a per-
species level for a biological basis.'' (State agency)
Response. We believe that the commenter requests that we mandate
how many young of any species must be left in a nest. Any State,
territory, or tribe may further regulate take of nestlings. States have
effectively restricted take conditions such as timing of take,
locations of take, and leaving nestlings. We are not aware of any
problems related to State regulation of take, but we will propose
amendments to these regulations to address this concern if it becomes
necessary to do so.
Issue. State or tribal restrictions.
``The proposed regulations prohibit falconry raptors from
being used for entertainment, promotion of any goods, etc., but allow
charging a fee for presentations to conservation education programs.
The regulation needs to defer
[[Page 59462]]
to State or tribal regulations which may further restrict falconry
raptors use in these activities.'' (State agency)
The regulations ``should explicitly state that State law
may enact and enforce regulations and standards that are more
restrictive than Service Regulations.'' (State agency)
Response. We stated in paragraph (a)(4)(ii) of the proposed rule
and in these regulations that ``State, tribal, or territorial laws may
be more restrictive than these Federal standards but may not be less
restrictive (Sec. 21.29 (b)(1)(iii)).''Issue. ``With the new 10(j)
designation pending statewide in Arizona and New Mexico, would this
regulation require Apprentice Falconers to have a sponsor at all times
and at all locations in these two states? We believe Apprentice
Falconers should have a sponsor [sic] with them while trapping
regardless of which county they are in.'' (State agency)
Response. No, the trapping restriction in aplomado falcon (Falco
femoralis) habitats applies only to the counties listed in these
regulations. In other circumstances, it is advisable for an Apprentice
Falconer to have his or her sponsor present when trapping, but it is
not required.Issue. Capture of raptors in some counties in Texas;
restrictions due to concerns about aplomado falcons. ``TPWD prefers to
leave the number of counties as is. The same ethical requirements for
cessation of trapping activities would apply regardless of the county
listed. The counties listed are those within which northern aplomado
falcons have been observed and this is the only basis we have for
establishing their range within Texas.'' (State agency)
Response. This comment seems to endorse our regulations proposal.
This provision is unchanged.Issue. Differing permit requirements. ``It
is not consistent to have applicants for a General Falconry permit sign
a letter: 1) certifying use of their raptors for falconry, 2) State
their qualifications for the permit, and 3) for the states to conduct a
review of raptors they possess, when this is not required of an
applicant for a Master Falconry permit. It should be completed for both
a General and Master applicant, or neither. We prefer neither.'' (State
agency)
Response. We believe it is appropriate to ask more about the
qualifications of an Apprentice Falconer wishing to advance to General
Falconer, than of a General Falconer wishing to advance. However, some
of the certification requirements have been eliminated from this final
rule.
Issue. Certification language. ``[T]he certification example
[should be clarified to avoid the general terminology (i.e., ``. ..the
other applicable parts of subchapter B of chapter I of title 50...'')
replacing it with the specific regulations to which the falconers are
agreeing.''
Response. We disagree. This is the standard language in 50 CFR
13.12, which we do not change in this rule. Further, a change in the
language could require that we change the falconry regulations if any
change is made to the relevant regulations elsewhere. Therefore, we
have not changed this language.
Issue. Reinstatement of lapsed permits.
``The proposed changes clarify the requirements for
reinstating permits that have lapsed. We support requiring the
examination for permittees that do not renew for five years or more and
requiring a facility inspection after 2 years or more as stated in
21.29 (b)(5)(ii), 21.29 (b)(5)(iii) and 21.29 (b)(5)(iv).'' (State
agency)
``Five years is a sufficiently long period to allow for
lapsing of a permit. Any longer than that and we feel that experiences
and skills may be significantly diminished.'' (State agency)
Response. We received conflicting opinions on this issue. These
regulations will allow reinstatement of a lapsed permit for up to 5
years. An individual who has not had a permit for 5 years or more must
have his or her facilities inspected before he or she may acquire a
falconry raptor. Any State, tribe, or territory can invoke additional
requirements for reinstatement of a lapsed permit (Sec. 21.29 (c)(5)).
Issue. Housing requirements. ``In Section 21.29 (b)(5)(iii) the
proposed changes preempt State housing requirements. We recommend that
this section be reworded to read: If your permit has lapsed less than 2
years, you must provide written verification to your State, tribal, or
territorial agency that regulates falconry stating that your falconry
facilities meet the standards in paragraph (c)(1) of this section and
meet the standards of the permitting State or tribal lands.''
Response. We disagree. These regulations require a statement about
the individual's falconry facilities, but any State may establish
additional requirements.Issue. Permittees with facilities in more than
one location. ``Under Section 21.29 (c)(7) and Section 21.29 (c)(8) the
issue of dual residency is addressed. Although we support allowing
states to issue a permit it is not clear whether or not all states will
be issuing resident permits. We would suggest that a resident permit be
issued by the State where the falconer maintains a legal residence. All
other permits would be non-resident, and would be required to meet all
the same requirements as a resident permittee if the State so chooses.
Suggested wording for Section 21.29 (c)(7): The State or Tribe in which
you are not a legal resident may require that you obtain a non-resident
falconry permit if you reside there for at least 30 days per year. You
must contact the State or tribal agency that regulates falconry to
determine whether you need a permit.'' (State agency)
``We recommend that Section 21.29 (b)(2)(iii) be reworded
to read:
If you have a residence in other states or on tribal lands other
than the State or tribal lands in which you comply with legal residence
requirements for more than 30 days a year, your falconry facilities at
any other location must be inspected by the State or Tribe. The
falconry housing facilities located in another State must meet the
standards in paragraph (c) of this section, must meet the standards of
the corresponding State or tribal lands and must be listed on your
resident and nonresident falconry permits.'' (State agency)
``Suggested changes to Section 21.29 (c)(8) are similar to
those in Section 21.29 (b)(2)(iii): If you live in a State or on tribal
lands for more than 30 days a year other than the State or tribal lands
in which you maintain your legal residence, your falconry facilities in
the other states or tribal lands must be inspected by the State or
Tribe. The facilities in all states and tribal lands must meet the
standards in paragraph (c) of this section, must meet the standards of
the corresponding State or tribal lands and must be listed on all
resident and non-resident falconry permits.''
Response. These are good suggestions. We have changed the relevant
language to state that facilities away from the permittee's residence
also must be inspected (Sec. 21.29 (d)(2)(i) and (ii)).Issue. Taking
banded raptors taken from the wild. ``We do not support taking a raptor
banded with a Federal Bird Banding Laboratory aluminum band from the
wild as listed in Section 21.29 (d)(3)(vi). Any bird that has been
banded or marked for the purpose of research should be returned to the
wild immediately after capture. We recommend that this requirement
apply to all species and not just peregrine falcons.'' (State agency)
Response. We discussed this issue with the Federal Bird Banding
Laboratory prior to publication of the
[[Page 59463]]
proposed regulations. The laboratory endorsed the position we took. We
did not change the requirements in this final rule.
Issue. Temporary possession of raptors while trapping.
``The AGFC opposes the draft regulation which would allow
a falconer to take a raptor and keep it as part of their [sic]
possession limit. This activity as proposed is in violation of the
Arkansas Game and Fish Commission Code of regulations which defines
``take,'' in part, ``to trap, capture or reduce to possession.'' If a
raptor is ``taken'' it has been trapped and is in the falconer's
possession and must become and remain part of the falconer's limit. We
recommend the Service delete this section of the proposed regulations
and allow the states to deal with it within their legal frameworks.''
(State agency)
``The draft regulations allow a falconer to take a raptor
and hold it for several hours before they make the decision to keep it
as part of their possession limit or not. This activity is in violation
of the laws of most if not all states. If an animal is ``taken'' is has
been reduced to possession and must remain part of the falconer's
limit. Recommend deleting this section and let the states deal with it
within their legal: frameworks.'' (State agency)
``Remove the proposal to allow a falconer to hold a
captured raptor for several hours before reducing them to possession.
If an animal is ``taken'' it has been reduced to possession and must
remain part of the falconer's limit.'' (State agency)
``We agree that no falconer should be allowed to ``cull''
raptors taken, by holding them longer than time that would allow for
immediate release. States will develop appropriate regulations within
legal frameworks.'' (State agency)
Response. We recognize the difficulty that this change would create
for the States. We have removed this language from this final rule.
Issue. Falconers assisting rehabilitators in conditioning raptors
for release.
``We also support the option for General and Master Class
falconers to assist wildlife rehabilitators in training young raptors
prior to their release as stated in Section 21.29(e)(9).''
``Falconers should be allowed to assist with
rehabilitation efforts. However, this begs the question >Why should a
licensed falconer be permitted under an individual rehabilitator who
likely knows less than they [sic] do about raptor health, behavior and
management?'' (State agency)
Response. Permitted migratory bird rehabilitators are knowledgeable
about avian health and care, but may not be equipped to properly
condition injured raptors for release. The rehabilitation regulations
require that every individual working with a rehabilitator be a
subpermittee, so we wrote the proposed falconry regulations to
accommodate this requirement. However, we understand the issue raised
by the State agency and other comments received. In this final rule we
amend the rehabilitation regulations to exempt falconers from the
subpermittee requirement ((Sec. 21.31 (e)(3))).
Issue. Transfer of rehabilitated raptors.
``We do not however support the option for rehabilitators
to permanently place a healthy raptor with a falconer under Section
21.29 (d)(6). In the event that this activity is allowed the State, not
the rehabilitator, should have sole discretion for allowing the
transfer to occur. Allowing rehabilitators to transfer healthy birds to
falconers for permanent use creates a number of concerns such as the
appropriate circumstances that warrant the transfer, the time of year
this would be authorized, at what age is the bird transferable and how
does the State handle situations in which there appears to be abuse of
this activity.''
``The State must be able to restrict the acquisition of a
bird for falconry purposes obtained from a licensed rehabilitator. This
change to 21.31: Rehabilitation Permits, should not allow the transfer
of the bird from a rehabilitator to a falconer without approval from
the State!'' (State agency)
Response. Any State, tribe, or territory may restrict such
transfers.Issue. ``Falconers should not be removing any bird from the
wild that is listed as federally or locally threatened or endangered.''
(State agency)
Response. Falconers can do so only with an appropriate permit or
permits. This provision has long been in the falconry regulations, and
we are not aware of issues with endangered or threatened species. This
provision is left in place in this final rule.
Issue. Foreign visitors practicing falconry.
``We support allowing visitors to the United States the
opportunity to practice falconry as stated in 21.29 (e)(12). However,
the State should have the option of issuing a non-resident permit or a
temporary permit. In our State, we already have regulations allowing
for a one year nonresident falconry permit.'' (State agency)
``This section did not address the case of foreign
falconers who come to the U.S. for 6 months out of the year or who
possess green cards, work visas, etc. If these individuals can legally
secure a State falconry license, they should be allowed to trap and
train a wild raptor.'' (State agency)
Response. These regulations do not prevent a State, tribe, or
territory from providing such a permit, and address doing so with
``temporary'' permits. An individual who has resident status may, at
the discretion of the permitting agency, obtain a falconry
permit.Issue. Abatement with falconry birds. ``You do not address the
use of birds possessed under a falconry permit for the control of
nuisance, non-protected birds, such as feral pigeons and European
starlings. This use of falconry birds is becoming more common and is
becoming a source of income for several falconers in Indiana. While the
long-term effectiveness of this use of a falconry bird is not currently
known, it is becoming more and more common. Currently the regulations
do not prohibit this activity since the bird is ``hunting'' or ``being
trained'' to hunt. This issue needs to be addressed. The State of
Indiana will pursue additional restrictions in this area, but it would
be helpful if the USFWS also addressed the legality of this.'' (State
agency)
Response. We have a guidance memorandum for the use of raptors in
abatement and a new application form. See 72 FR 69705-69706 (December
10, 2007), and http://migratorybirds.fws.gov.
V. Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget (OMB) has determined that this
rule is significant and has reviewed this rule under Executive Order
12866. OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the
[[Page 59464]]
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 does not have a significant economic
impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act, and have determined that this action does not have a
significant economic impact on a substantial number of small entities
because the changes we are proposing are intended primarily to clarify
the requirements for falconry and the procedures for obtaining a
falconry permit.
This determination is based on the fact that we are proposing
limited changes to the current requirements for falconry facilities
(housing). To legally practice falconry in the United States, an
applicant will be required to obtain a State, tribal, or territorial
falconry permit. To do so, he or she must demonstrate knowledge of
falconry and must have facilities for keeping falconry raptors that
will protect them from weather extremes. The changes in the regulations
will require minimal changes to the facilities of some falconers, but
affect neither the information collected nor the fees required to
obtain a permit. Consequently, we certify that because this rule does
not have a significant economic effect on a substantial number of small
entities, a regulatory flexibility analysis is not required.
This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)).
It does not have a significant impact on a substantial number of small
entities.
a. This rule does not have an annual effect on the economy of $100
million or more. If all falconry permittees had to rebuild their
falconry facilities to comply with the regulations, at an estimated
$2,000 each, the total cost to permittees would be $8,000,000. This
highest-cost estimate for compliance with this rule by permittees would
be a one-time expenditure.
b. This rule will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The practice of falconry does not
significantly affect costs or prices in any sector of the economy.
c. This rule will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Falconry is an endeavor of private individuals. Neither
regulation nor practice of falconry significantly affects business
activities.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule does 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 does 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. Though States may have
to revise their falconry regulations to comply with the revisions,
nearly every State already has falconry regulations in place.
Therefore, revisions of the State regulations should not be
significant.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. This rule does not contain a
provision for taking of private property. A takings implication
assessment is not required.
Federalism
This rule does not have sufficient Federalism effects to warrant
preparation of a Federalism assessment under Executive Order 13132. It
does not interfere with the States' ability to manage themselves or
their funds. No significant economic impacts are expected to result
from the regulation of falconry. However, this rule provides the
opportunity for States to cooperate in management of falconry permits
and to ease the permitting process for permit applicants.
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 November 30, 2010. This regulation will eliminate the
Federal falconry permit, and reduce the burden for both permittees and
the migratory bird permit offices. It does not add to the approved
information collection. Information from the collection is used to
document take of raptors from the wild for use in falconry and to
document transfers of raptors held for falconry between permittees. A
Federal agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
This rule does not change the take of raptors from the wild allowed
for each permittee each year, though it will allow a small increase in
total take over a short term. The changes will delegate administration
of falconry permitting and the practice of falconry to the States and
tribes, and are otherwise largely to reorganize the regulations, make
them clearer, and combine related sections. We have analyzed this rule
in accordance with the National Environmental Policy Act (NEPA), 42
U.S.C