9316 Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and 512 DM 2, we have 

evaluated potential effects on Federally 

recognized Indian Tribes and have 

determined that there are no potential 

effects. This rule will not interfere with 

the Tribes’ ability to manage themselves 

or their funds or to regulate migratory 

bird activities on Tribal lands. 

Energy Supply, Distribution, or Use 

(Executive Order 13211) 

On May 18, 2001, the President issued 

Executive Order 13211 addressing 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. 

Because this rule only affects control of 

invasive purple swamphens at limited 

locations, it will not be a significant 

regulatory action under Executive Order 

12866, nor will it significantly affect 

energy supplies, distribution, or use. 

This action will not be a significant 

energy action, and no Statement of 

Energy Effects is required. 

References 

Anonymous. 2007. Purple swamphen 

control plan. Unpublished document, 

Florida Fish and Wildlife Conservation 

Commission. 

Pratt, H. D., P. L. Bruner, and D. G. 

Berrett. 1987. The Birds of Hawaii and 

the Tropical Pacific. Princeton 

University Press, Princeton, New Jersey. 

List of Subjects in 50 CFR Part 21 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

■ For the reasons stated in the preamble, 

we amend part 21 of subchapter B, 

chapter I, title 50 of the Code of Federal 

Regulations, as follows: 

PART 21—MIGRATORY BIRD PERMITS 

■ 1. The authority citation for part 21 

continues to read as follows: 

Authority: Migratory Bird Treaty Act, 40 

Stat. 755 (16 U.S.C. 703); Public Law 95–616, 

92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 

106–108, 113 Stat. 1491, Note following 16 

U.S.C. 703. 

■ 2. Add new § 21.53 to subpart D to 

read as follows: 

§ 21.53 Control order for purple 

swamphens. 

(a) Control of purple swamphens. 

Federal, State, Tribal, and local wildlife 

management agencies, and their tenants, 

employees, or agents may remove or 

destroy purple swamphens (Porphyrio 

porphyrio) or their nests or eggs at any 

time when they find them anywhere in 

the contiguous United States, Hawaii, 

Alaska, the Commonwealth of Puerto 

Rico, or the U.S. Virgin Islands. Any 

authorized agency personnel may 

temporarily possess, transport, and 

dispose of purple swamphens, subject to 

the restrictions in paragraph (c) of this 

section. No permit is necessary to 

engage in these actions. 

(b) Disposal of purple swamphens. If 

you are authorized to control purple 

swamphens, you may dispose of purple 

swamphens by the following methods: 

You may donate purple swamphens 

taken under this order to public 

museums or public institutions for 

scientific or educational purposes; you 

may dispose of the carcasses by burial 

or incineration; or, if the carcasses are 

not readily retrievable, you may leave 

them in place. No one may retain for 

personal use, offer for sale, or sell a 

purple swamphen removed under this 

section. 

(c) Other provisions. (1) You may not 

remove or destroy purple swamphens or 

their nests or eggs if doing so is contrary 

to any State, territorial, tribal, or local 

laws or regulations. 

(2) You may not remove or destroy 

purple swamphens or their nests or eggs 

if doing so will adversely affect other 

migratory birds or species designated as 

endangered or threatened under the 

authority of the Endangered Species 

Act. In particular, the purple swamphen 

resembles the native purple gallinule 

(Porphyrula martinica). Authorized 

persons must take special care not to 

take purple gallinules or their nests or 

eggs when conducting purple 

swamphen control activities. Certain 

persons may take purple gallinules 

without a permit on rice-producing 

property in Louisiana according to the 

terms of a separate depredation order 

(see § 21.45). 

(3) If you use firearms to control 

purple swamphens under this 

regulation, you may use only nontoxic 

shot or nontoxic bullets for the control. 

(4) If, while operating under this 

regulation, an authorized person takes 

any other species protected under the 

Endangered Species Act, the Migratory 

Bird Treaty Act, or the Bald and Golden 

Eagle Protection Act, that person must 

immediately report the take to the 

nearest Ecological Services office of the 

Fish and Wildlife Service. See http:// 

www.fws.gov/where/ to find the location 

of the nearest Ecological Services office. 

(5) We may suspend or revoke the 

authority of any agency or individual to 

undertake purple swamphen control if 

we find that agency or individual has, 

without an applicable permit, taken 

actions that may take Federally listed 

threatened or endangered species or any 

bird species protected by the Bald and 

Golden Eagle Protection Act or the 

Migratory Bird Treaty Act (see § 10.13 of 

subchapter A of this chapter for the list 

of protected migratory bird species), or 

otherwise violated Federal regulations. 

Dated: February 3, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–3289 Filed 2–26–10; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

[Docket Number FWS–R9–MB–2007–0017; 

91200–1231–9BPP] 

RIN 1018–AV34 

Migratory Bird Permits; Control of 

Muscovy Ducks, Revisions to the 

Waterfowl Permit Exceptions and 

Waterfowl Sale and Disposal Permits 

Regulations 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, change the regulations 

governing control of introduced 

migratory birds. The muscovy duck 

(Cairina moschata) occurs naturally 

only in southern Texas. It has been 

introduced in other locations, where it 

is considered an invasive species that 

sometimes creates problems through 

competition with native species, 

damage to property, and transmission of 

disease. We amend the regulations to 

prohibit sale, transfer, or propagation of 

muscovy ducks for hunting and any 

other purpose other than food 

production, and to allow their removal 

in locations in which the species does 

not occur naturally in the contiguous 

United States, Alaska, and Hawaii, and 

in U.S. territories and possessions. This 

requires revision of regulations 

governing permit exceptions for captivebred migratory waterfowl other than 

mallard ducks, and waterfowl sale and 

disposal permits, and the addition of an 

order to allow control of muscovy 

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Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 9317 

ducks, their nests, and eggs. We also 

have rewritten the affected regulations 

to make them easier to understand. 

DATES: This rule will be effective on 

March 31, 2010. 

FOR FURTHER INFORMATION CONTACT: Dr. 

George T. Allen, Division of Migratory 

Bird Management, U.S. Fish and 

Wildlife Service, 703–358–1825. 

SUPPLEMENTARY INFORMATION: 

Background 

The Fish and Wildlife Service is the 

Federal agency delegated the primary 

responsibility for managing migratory 

birds. The delegation is authorized by 

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). 

We implement the MBTA through 

Federal regulations found in title 50 of 

the Code of Federal Regulations (CFR). 

In 50 CFR 10.13, we list all species of 

migratory birds protected by the MBTA 

that are subject to the regulations 

protecting migratory birds in title 50, 

subchapter B (Taking, Possession, 

Transportation, Sale, Purchase, Barter, 

Exportation, and Importation of Wildlife 

and Plants). In 50 CFR part 13 (General 

Permit Procedures) and part 21 

(Migratory Bird Permits), regulations 

allow us to issue permits for certain 

activities otherwise prohibited in regard 

to migratory birds. In part 21, we issue 

permits for the taking, possession, 

transportation, sale, purchase, barter, 

importation, exportation, and banding 

and marking of migratory birds. In that 

part, we also provide certain exceptions 

to permit requirements for public, 

scientific, or educational institutions 

and establish depredation and control 

orders that provide limited exceptions 

to the MBTA. 

Muscovy Duck 

The muscovy is a large duck native to 

South America, Central America, and 

Mexico. Due to a recent northward 

expansion of the range of the species, 

there is a small natural population in 

three counties in southern Texas in 

which natural breeding of wild birds 

has been confirmed. For that reason, we 

included this species in the final rule 

published today to revise the list of 

migratory birds found at 50 CFR 10.13. 

The muscovy duck normally inhabits 

forested swamps and mangrove ponds, 

lakes and streams, and freshwater ponds 

near wooded areas. The species often 

roosts in trees at night. The hen usually 

lays her eggs in a tree hole or hollow. 

However, muscovy ducks will 

occasionally nest in abandoned nests of 

large birds such as ospreys or eagles, 

between palm tree fronds, and in 

wooden boxes or other man-made, 

elevated cavities. The species does not 

form stable pairs. 

Muscovy ducks can breed near urban 

and suburban lakes and on farms, 

nesting in tree cavities or on the ground, 

under shrubs in yards, on condominium 

balconies, or under roof overhangs. 

Feral populations, particularly in 

Florida, are said to present problems. 

Feral muscovy ducks are wary and 

associate little with other species. 

Muscovy ducks feed on the roots, 

stems, leaves, and seeds of aquatic and 

terrestrial plants, including agricultural 

crops. They also eat small fishes, 

reptiles, crustaceans, insects, 

millipedes, and termites. 

Muscovy ducks live alone or in 

groups of 4 to 12, rarely in large flocks. 

They are mainly active in the morning 

and afternoon, feeding on the shores of 

brackish waters, or in the flood 

savannah and underbrush. They often 

sleep at night in permanent roosts in 

trees along the river bank. Heavy and 

low-flying, they are silent and timid. 

Muscovy ducks swim much less than 

other ducks, and the males fly poorly. 

We received comments from States 

and individuals expressing concern over 

control of muscovy ducks in response to 

the 2006 proposal to add the species to 

the list of those protected under the 

MBTA (50 CFR 10.13). In general, States 

expressed concern over feral and freeranging populations of muscovy ducks 

present as the result of human activity. 

For example, one State was concerned 

that protecting the species under the 

MBTA ‘‘would severely impede our 

efforts to manage the feral and freeranging populations of domestic 

muscovy ducks.’’ Individuals expressed 

concern over property damage and 

aggressiveness demonstrated by the 

ducks. The muscovy duck is an 

introduced species in many locations in 

the United States. We believe it is 

prudent to prohibit activities that would 

allow release of muscovy ducks in areas 

in which they are not native and may 

compete with native species. 

We expect control of muscovy ducks 

to be undertaken primarily through the 

use of walk-in baited traps and through 

shooting. The use of baited traps will 

greatly limit the potential impacts to 

other species, especially passerines, 

which would be unlikely to enter 

properly placed traps. Shooting 

undertaken by State agency or U.S. 

Department of Agriculture Wildlife 

Services personnel would be very 

unlikely to harm other species. 

We propose to revise 50 CFR 21.14 to 

prohibit sale and, in most cases, 

possession, of muscovy ducks; to revise 

§ 21.25 to prohibit sale or transfer of 

captive-bred muscovy ducks for 

hunting; and to add § 21.54 to allow 

removal of introduced muscovy ducks 

from any location in the contiguous 

United States outside Hidalgo, Starr, 

and Zapata Counties in Texas, and in 

Alaska, Hawaii, and U.S. territories and 

possessions. This removal is in keeping 

with the Service’s other actions to 

reduce the spread of introduced species 

that compete with native species or 

harm habitats that they use. It also is in 

keeping with the intent of the Migratory 

Bird Treaty Reform Act of 2004 (16 

U.S.C. 703 (b)), which excluded nonnative species from MBTA protection. 

Comments on the Proposed Rule 

We received ten sets of comments on 

the proposed rule published on August 

22, 2008 (73 FR 49626–49631). The 

commenters raised the following issues. 

Issue. One commenter suggested that 

Cameron County, Texas not be included 

in the natural range of the muscovy 

duck in Texas. 

‘‘I suggest leaving Cameron County, TX out 

of ‘native range’ since birds there act quite 

tame and occur in urban/suburban settings.’’ 

Reference Brush, T. 2005. Nesting Birds 

of a Tropical Frontier, the Lower Rio 

Grande Valley of Texas. Texas A&M 

University Press, College Station, Texas. 

Response. We revised this regulation 

accordingly. The listing of counties now 

matches the information in the listing 

by the American Ornithologists’ Union 

(1998. Check-list of North American 

Birds. 7th edition. American 

Ornithologists’ Union, Washington, DC) 

and subsequent updates. 

Issue. Escape to the wild and 

competition with native species. 

‘‘* * * these new proposed rules do not 

deal with domesticated farm populations. 

Regulation of feral populations may help to 

solve some problems, but efforts should be 

taken to regulate domesticated populations as 

well. On most farms, some animals escape 

from time to time. These escaped animals 

could easily set up a population and be 

responsible for the spread of Muscovy ducks. 

If the Fish and Wild Life Service’s true goal 

is to control indigenous Muscovy ducks, it 

seems imperative that they should adopt 

provisions aimed at minimizing the potential 

for domesticated ducks to escape and then 

reproduce.’’ 

‘‘I am happy to get rid of muscovy ducks 

because as anyone would probably heard, 

this species really mess up the lives of other 

bird species in Tampa Bay area. There is, in 

my opinion, way too many muscovy ducks 

hanging or hovering around aquatic 

ecosystem especially suburban pond or lake 

where many local species thrive. I personally 

saw muscovy ducks chasing white ibis and 

great egret from a lake not too far from my 

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9318 Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 

house. Not only the muscovy ducks take over 

the ‘‘aquatic territory’’, they multiply too fast. 

I am seeing locals feeding the duck making 

the ducks staying put so they would get easy 

food which also help supply the offspring as 

well. I’ve lived in Tampa Bay area for almost 

15 years and noticed that the muscovy ducks 

are definitely taking over the local species 

habitat and pushing the local species to find 

other place where it get tougher with 

development brewing. If we can manage the 

population by limiting eggs hatching and if 

possible, hunting, we can somewhat control 

the population. The muscovy ducks have 

been more of bad news than good news.’’ 

Response. Control of this species in 

areas in which it is invasive is the intent 

of this rulemaking. 

Issue. Range expansion of this species 

to the north. 

‘‘These ducks are moving up because of 

global warming. Why when they seek the 

warmer weather up north are they being 

killed because of that natural movement?’’ 

‘‘If the birds are expanding their range— 

why would you want to stop this?’’ 

‘‘* * * nowhere in the proposed rule does 

the agency make an allowance for natural 

populations that spread into neighboring 

counties. The language should be changed to 

allow for natural population growth from 

native regions.’’ 

Response. We recognize that muscovy 

ducks have expanded their range 

slightly into very southern Texas. 

However, they are introduced in most 

locations in the U.S. in which they are 

found, and as such are an invasive 

species that competes with native 

species. Control of muscovy ducks 

within their natural range in southern 

Texas will not be allowed under the 

control order. Any control of muscovy 

ducks in the three counties in which 

they have a natural population will 

require a depredation permit, just as 

with any other species protected by the 

MBTA. It is doubtful that we would 

issue any such permits unless current 

population levels increase significantly, 

as we may not issue depredation 

permits that potentially threaten a 

wildlife population under 50 CFR 13.21. 

We will consider this species’ status and 

range in future updates of the list of the 

migratory birds at 50 CFR 10.13, and 

may amend this regulation accordingly. 

In Hidalgo, Starr, and Zapata counties 

in Texas, muscovy ducks will be 

protected as any other migratory bird 

listed in 10.13. 

Issue. Interbreeding with other 

species. 

‘‘The species has ‘‘begun to interbreed with 

northern ducks.’’ How does this proposal 

intend on dealing with this issue?’’ 

‘‘* * * the proposed rule makes no 

mention of so-called ‘‘mules,’’ a cross 

between Muscovy ducks and other duck 

species. Mules, while unable to reproduce, 

s[t]ill have the potential to hamper 

government control of Muscovy duck 

populations. This topic should be 

addressed.’’ 

Response. Any hybrid of a species 

listed at 50 CFR 10.13 is a Federallyregulated migratory bird species. As 

such, it may be managed under all 

relevant regulations. Hybrids of 

muscovy ducks in the wild may be 

controlled under this regulation. 

Issue. Production of muscovy ducks 

for food. 

‘‘* * * muscovy ducks are produced in the 

millions in the United States generally for 

meat production * * *. No permits are 

needed to possess domesticated barnyard 

fowl. This species is bought and sold in the 

millions being the most commonly held 

species of waterfowl in the United States.’’ 

‘‘I believe that problems associated with 

large feral populations of muscovy ducks are 

from domesticated varieties raised in 

captivity that have wandered, or allowed to 

free range, and not from ‘wild’ type 

muscovies imported from Latin America. 

‘‘The proposed regulation’s goal of 

preventing additional human introduction of 

Muscovy ducks has great merit. It is far better 

to prevent populations from establishing than 

to subject more ducks to control later. 

However, the proposed regulation limits 

acquisition, possession, and propagation for 

some owners but not for others. Accidental 

releases from food production are not 

addressed and could continue to allow 

Muscovy populations to become established. 

No clear reason is evident for targeting only 

Muscovies not in food production to prevent 

additional introductions. Why are Muscovies 

in food production excepted when this 

source of accidental releases may be 

significant? 

‘‘The rule should be focused on controlling 

populations, both feral and domestic, instead 

of destroying established populations. By 

controlling populations, the Fish and 

Wildlife Service can largely achieve the same 

goals without many of the potential harmful 

side effects.’’ 

Response. This rule is intended to 

limit production and releases of 

muscovy ducks in locations in which 

the species is not native. However, it is 

unusual because we will continue to 

allow ongoing commercial endeavors 

with a species that was not protected 

under the MBTA. We are aware of the 

production of muscovy ducks for food, 

and this rule is intended to allow that 

production to continue. We will allow 

continued production of muscovy ducks 

for food because we do not want to 

create economic dislocation. We may 

review allowing possession for food 

production in the future if escapes and 

releases from this source are shown to 

be a problem. However, the regulations 

state that release of muscovy ducks to 

the wild is not to be allowed, regardless 

of the source of the birds. 

Issue. Three commenters requested 

that use of OvoControlJ (nicarbazin) be 

allowed under the control order. 

‘‘The HSUS supports non-lethal tools to 

resolve conflicts such as when people feel 

Muscovy ducks are a nuisance. We strongly 

recommend that the final regulation 

explicitly allows use of contraceptive 

technology to control Muscovy ducks. 

Nicarbazin is registered by the 

Environmental Protection Agency for 

Muscovy ducks. It prevents egg and embryo 

development so that additional ducklings do 

not hatch. This tool allows communities to 

humanely reduce flocks without the 

controversy engendered by killing. Muscovy 

and other ducks are much loved by some 

members of the community even where they 

are considered a nuisance. Contraceptive 

technology must be available for 

communities that rightly reject killing 

neighborhood ducks.’’ 

Response. As with control of some 

other bird species, particularly Canada 

geese (Branta Canadensis), nicarbazin 

may be used if the applicator has a 

migratory bird permit to use it. 

However, we will work on the necessary 

Endangered Species consultation to 

allow use of nicarbazin under this 

control order in the future. 

Issue. USDA Wildlife Services 

requested that within Cameron, Hidalgo, 

Starr, and Zapata counties in Texas, 

muscovy duck management be allowed 

consistent with rules and regulations for 

other migratory bird species, including 

take of birds and their nests and eggs. 

Response. Control of Muscovy ducks 

in Hidalgo, Starr, and Zapata counties 

(we removed Cameron county from the 

provisions in § 21.54) would be subject 

to the regulations for authorizing 

depredation permits and our general 

permit regulations. We added language 

to § 21.54 to address this concern. 

Issue. Capture and transfer of 

muscovy ducks, and muscovy ducks on 

private property. 

‘‘Live-capture and transfer to responsible 

private ownership is also a humane 

resolution for so-called nuisance ducks. 

While the opportunities for such transfer are 

limited, where there are potential new homes 

it is humane to the ducks and offers 

communities an uncontroversial solution. 

With the proposed restrictions on 

propagation and release, this resolution 

would also achieve the regulation’s goal. The 

final regulations should allow this option for 

controlling Muscovy ducks.’’ 

‘‘The HSUS is very concerned about the 

proposed regulation’s impact on currently 

owned ducks who are not kept for food 

production. As proposed, the regulations 

seem to outlaw these ducks. It is not clear 

what USFWS expects will become of them 

but it seems it would be illegal for their 

owners to continue to keep them. This would 

be unreasonable and unnecessarily cruel for 

both the ducks and their owners. Many 

people keep ducks as pets. Waterfowl 

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Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 9319 

fanciers maintain hobby flocks. Waterfowl 

rescuers have removed ducks from places 

people considered them nuisances; keeping 

some and finding new private owners for 

others. Forcing all these private owners to 

kill their birds or be in violation of this 

regulation would be outrageous. However, 

that appears to be the only way to construe 

the proposed regulation.’’ 

Response. We allow private 

ownership of MBTA-protected species 

in few circumstances. We intend to 

disallow private possession of muscovy 

ducks, except to raise them to be sold 

as food (which has been ongoing for 

years). However, we will allow 

possession of any live muscovy duck 

held on the date when this rule takes 

effect. 

In most every location, the muscovy 

duck is an introduced, invasive species. 

We will allow control of muscovy ducks 

as best suits the needs of the States and 

wildlife management agencies, who 

requested this authorization. Though 

the control order allows States and other 

entities to remove muscovy ducks, we 

do not expect that they will do so when 

the ducks are on private property. 

However, people who propagate 

muscovy ducks or allow them to 

multiply and move off their property 

should realize that the muscovy ducks 

may be subject to the control efforts that 

the State or local wildlife agency deems 

necessary. 

Required Determinations 

Regulatory Planning and Review 

(Executive Order 12866) 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not 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, and 

(d) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996 (Pub. L. 

104–121)), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule would not have 

a significant economic impact on a 

substantial number of small entities. 

SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide the statement of the 

factual basis for certifying that a rule 

would not have a significant economic 

impact on a substantial number of small 

entities. We have examined the rule’s 

potential effects on small entities as 

required by the Regulatory Flexibility 

Act. Commercial producers of muscovy 

ducks for sale to entities other than 

food-producers are few and widely 

scattered across the country. Therefore, 

we have determined that this action will 

not have a significant economic impact 

on a substantial number of small 

entities, because the changes we are 

proposing are intended primarily to 

reduce the spread of an invasive species 

little used in commercial endeavors. 

There will very minimal costs, if any, 

associated with this regulations change. 

Consequently, we certify that because 

this rule will not have a significant 

economic effect on a substantial number 

of small entities, a regulatory flexibility 

analysis is not required. 

This rule is not a major rule under 

SBREFA (5 U.S.C. 804(2)). It will not 

have a significant impact on a 

substantial number of small entities. 

a. This rule will not have an annual 

effect on the economy of $100 million 

or more. 

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. 

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 foreignbased enterprises. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we have determined the following: 

a. This rule will not ‘‘significantly or 

uniquely’’ affect small governments. A 

small government agency plan is not 

required. Actions under the proposed 

regulation will not affect small 

government activities in any significant 

way. 

b. This rule will not produce a 

Federal mandate of $100 million or 

greater in any year; i.e., it is not a 

‘‘significant regulatory action’’ under the 

Unfunded Mandates Reform Act. 

Takings 

In accordance with E.O. 12630, the 

rule will not have significant takings 

implications. This rule will not contain 

a provision for taking of private 

property. Therefore, a takings 

implication assessment is not required. 

Federalism 

This rule will not have sufficient 

Federalism effects to warrant 

preparation of a Federalism assessment 

under E.O. 13132. It will not interfere 

with the States’ ability to manage 

themselves or their funds. No significant 

economic impacts are expected to result 

from control of muscovy ducks. 

Civil Justice Reform 

In accordance with E.O. 12988, the 

Office of the Solicitor has determined 

that the rule will 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 (44 U.S.C. 

3501 et seq.). There are no new 

information collection requirements 

associated with this regulations change. 

National Environmental Policy Act 

We have analyzed this rule in 

accordance with the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 432–437(f), and part 516 of the 

U.S. Department of the Interior Manual 

(516 DM). The change we propose is to 

allow people and agencies to remove the 

muscovy duck a species from locations 

in the United States and United States 

territories in which the species may 

have been introduced. We completed an 

Environmental Assessment and a 

Finding of No Significant Impact in 

which we concluded that the 

regulations change allowing the removal 

of an introduced species does not 

require an environmental impact 

statement addressing potential impacts 

on the quality of the human 

environment. 

Environmental Consequences of the 

Action 

The primary change made in this final 

rule is to prohibit release of the 

muscovy duck in locations in which it 

does not occur naturally. It has been 

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9320 Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 

introduced in other locations, where it 

is an invasive species that sometimes 

creates problems through competition 

with native species and damage to 

property. We amend 50 CFR part 21 to 

prohibit sale of muscovy ducks for 

hunting, and to allow their removal in 

locations in which the species does not 

occur naturally in the contiguous 

United States, Alaska, and Hawaii, and 

in U.S. territories and possessions. 

Revisions are made to § 21.14 (permit 

exceptions for captive-bred migratory 

waterfowl other than mallard ducks) 

and § 21.25 (waterfowl sale and disposal 

permits), and addition of § 21.54, an 

order to allow control of muscovy 

ducks, their nests, and eggs. The first 

two regulations are to prevent 

introduction of the species and will 

only have a positive environmental 

impact, if any. Because the muscovy 

duck occurs only in small numbers at 

scattered locations outside its natural 

range in southern Texas, the impacts of 

control of the species under a new 

regulation at § 21.54 are minimal. 

Socioeconomic. This rule will have 

minimal socioeconomic impacts. 

Migratory bird populations. This rule 

will not affect migratory bird 

populations. 

Endangered and threatened species. 

The regulation is for migratory bird 

species that are not threatened or 

endangered. It will not affect threatened 

or endangered species or critical 

habitats. 

Section 7 of the Endangered Species 

Act (ESA) of 1973, as amended (16 

U.S.C. 1531 et seq.), requires that ‘‘The 

Secretary [of the Interior] shall review 

other programs administered by him 

and utilize such programs in 

furtherance of the purposes of this 

chapter’’ (16 U.S.C. 1536(a)(1)). It further 

states that the Secretary must ‘‘insure 

that any action authorized, funded, or 

carried out* * * is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of [critical] 

habitat’’ (16 U.S.C. 1536(a)(2)). We have 

concluded that the regulations change 

would not affect listed species, and the 

Division of Migratory Bird Management 

has conducted an Endangered Species 

consultation on this rule to confirm this 

conclusion. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), E.O. 

13175, and 512 DM 2, we have 

evaluated potential effects on Federally 

recognized Indian Tribes and have 

determined that there are no potential 

effects. This rule will not interfere with 

the Tribes’ ability to manage themselves 

or their funds or to regulate migratory 

bird activities on Tribal lands. 

Energy Supply, Distribution, or Use 

(E.O. 13211) 

On May 18, 2001, the President issued 

E.O. 13211 addressing regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. Because this rule will 

affect only import and export of birds in 

limited circumstances, it is not a 

significant regulatory action under E.O. 

12866, and will not significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action and no Statement of 

Energy Effects is required. 

List of Subjects in 50 CFR Part 21 

Exports, Hunting, Imports, Reporting, 

and recordkeeping requirements, 

Transportation, Wildlife. 

■ For the reasons stated in the preamble, 

we amend part 21 of subchapter B, 

chapter I, title 50 of the Code of Federal 

Regulations, as follows: 

PART 21—MIGRATORY BIRD PERMITS 

■ 1. The authority citation for part 21 

continues to read as follows: 

Authority: Migratory Bird Treaty Act, 40 

Stat. 755 (16 U.S.C. 703); Pub. L. 95–616, 92 

Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106– 

108, 113 Stat. 1491, Note following 16 U.S.C. 

703. 

■ 2. Revise § 21.14 to read as follows: 

§ 21.14 Permit exceptions for captive-bred 

migratory waterfowl other than mallard 

ducks. 

You may acquire captive-bred and 

properly marked migratory waterfowl of 

all species other than mallard ducks 

(Anas platyrhynchos), alive or dead, or 

their eggs, and possess and transport 

such birds or eggs and any progeny or 

eggs for your use without a permit, 

subject to the following conditions and 

restrictions. Additional restrictions on 

the acquisition and transfer of muscovy 

ducks (Cairina moschata) are in 

paragraph (g) of this section. 

(a) You may acquire live waterfowl or 

their eggs only from a holder of a valid 

waterfowl sale and disposal permit in 

the United States. You also may 

lawfully acquire them outside of the 

United States with appropriate permits 

(see § 21.21 of subpart C of this part). 

(b) All progeny of captive-bred birds 

or eggs from captive-bred birds must be 

physically marked as set forth in 

§ 21.13(b). 

(c) You may not transfer or dispose of 

captive-bred birds or their eggs, whether 

alive or dead, to any other person unless 

you have a waterfowl sale and disposal 

permit (see § 21.25 of subpart C of this 

part). 

(d) Lawfully possessed and properly 

marked birds may be killed, in any 

number, at any time or place, by any 

means except shooting. Such birds may 

be killed by shooting only in accordance 

with all applicable hunting regulations 

governing the taking of like species from 

the wild (see part 20 of this subchapter). 

(e) At all times during possession, 

transportation, and storage until the raw 

carcasses of such birds are finally 

processed immediately prior to cooking, 

smoking, or canning, you must leave the 

marked foot or wing attached to each 

carcass, unless the carcass was marked 

as provided in § 21.25(b)(6) and the foot 

or wing was removed prior to your 

acquisition of the carcass. 

(f) If you acquire captive-bred 

waterfowl or their eggs from a waterfowl 

sale and disposal permittee, you must 

retain the FWS Form 3–186, Notice of 

Waterfowl Sale or Transfer, from the 

permittee for as long as you have the 

birds, eggs, or progeny of them. 

(g) You may not acquire or possess 

live muscovy ducks, their carcasses or 

parts, or their eggs, except to raise them 

to be sold as food, and except that you 

may possess any live muscovy duck that 

you lawfully acquired prior to March 

31, 2010. If you possess muscovy ducks 

on that date, you may not propagate 

them or sell or transfer them to anyone 

for any purpose, except to be used as 

food. You may not release them to the 

wild, sell them to be hunted or released 

to the wild, or transfer them to anyone 

to be hunted or released to the wild. 

(h) Dealers in meat and game, hotels, 

restaurants, and boarding houses may 

serve or sell to their customers the 

carcass of any bird acquired from a 

holder of a valid waterfowl sale and 

disposal permit. 

■ 3. Revise § 21.25 to read as follows: 

§ 21.25 Waterfowl sale and disposal 

permits. 

(a) Permit requirement. You must 

have a waterfowl sale and disposal 

permit before you may lawfully sell, 

trade, donate, or otherwise dispose of, 

most species of captive-reared and 

properly marked migratory waterfowl or 

their eggs. You do not need a permit to 

sell or dispose of properly marked 

captive-reared mallard ducks (Anas 

platyrhynchos) or their eggs. 

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Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 9321 

(b) Permit conditions. In addition to 

the general conditions set forth in part 

13 of this subchapter B, waterfowl sale 

and disposal permits are subject to the 

following conditions: 

(1) You may not take migratory 

waterfowl or their eggs from the wild, 

unless take is provided for elsewhere in 

this subchapter. 

(2) You may not acquire migratory 

waterfowl or their eggs from any person 

who does not have a valid waterfowl 

propagation permit. 

(3) Before they are 6 weeks of age, all 

live captive migratory waterfowl 

possessed under authority of a valid 

waterfowl sale and disposal permit must 

be physically marked as defined in 

§ 21.13(b). 

(4) All offspring of birds hatched, 

reared, and retained in captivity also 

must be marked before they are 6 weeks 

of age in accordance with § 21.13(b), 

unless they are held in captivity at a 

public zoological park, or a public 

scientific or educational institution. 

(5) Properly marked captive-bred 

birds may be killed, in any number, at 

any time or place, by any means except 

shooting. They may be killed by 

shooting only in accordance with all the 

applicable hunting regulations 

governing the taking of like species from 

the wild. 

(6) At all times during possession, 

transportation, and storage, until the 

raw carcasses of such birds are finally 

processed immediately prior to cooking, 

smoking, or canning, the marked foot or 

wing must remain attached to each 

carcass. However, if you have a State 

license, permit, or authorization that 

allows you to sell game, you may 

remove the marked foot or wing from 

the raw carcasses if the number of your 

State license, permit, or authorization 

has been legibly stamped in ink on the 

back of each carcass and on the 

wrapping or container in which each 

carcass is maintained, or if each carcass 

is identified by a State band on a leg or 

wing pursuant to requirements of your 

State license, permit, or authorization. 

(7) You may dispose of properly 

marked live or dead birds or their eggs 

(except muscovy ducks and their eggs) 

in any number at any time or place, or 

transfer them to any person, if the birds 

are physically marked prior to sale or 

disposal, regardless of whether or not 

they have attained 6 weeks of age. 

(8) You may propagate muscovy 

ducks (Cairina moschata) only for sale 

for food. 

(i) You may not release muscovy 

ducks to the wild or transfer them for 

release to the wild. 

(ii) You may not sell or transfer 

muscovy ducks to be killed by shooting. 

(9) If you transfer captive-bred birds 

or their eggs to another person, you 

must complete FWS Form 3–186, Notice 

of Waterfowl Sale or Transfer, and 

provide all information required on the 

form, plus the method or methods by 

which individual birds are marked as 

required by § 21.13(b). 

(i) Give the original of the completed 

form to the person acquiring the birds 

or eggs. 

(ii) Retain one copy in your files. 

(iii) Attach one copy to the shipping 

container for the birds or eggs, or 

include it with shipping documents that 

accompany the shipment. 

(iv) By the end of the month in which 

you complete the transfer, mail two 

copies to the Fish and Wildlife Service 

Regional Office that issued your permit. 

(c) Reporting requirements. You must 

submit an annual report by January 10th 

of each year to the Fish and Wildlife 

Service Regional Office that issued your 

permit. You must report the number of 

waterfowl of each species you possess 

on that date, and the method or methods 

by which each is marked. 

(d) Applying for a waterfowl 

propagation permit. Submit your 

application for a waterfowl sale and 

disposal permit to the appropriate 

Regional Director (Attention: Migratory 

Bird Permit Office). You can find 

addresses for the Regional Directors in 

50 CFR 2.2. Your application must 

contain the general information and 

certification required in § 13.12(a) of 

subchapter A of this chapter, and the 

following additional information: 

(1) A description of the area where 

you will keep waterfowl in your 

possession; 

(2) The species and numbers of 

waterfowl you possess and a statement 

showing from whom the birds were 

obtained; 

(3) A statement indicating the method 

by which birds you hold will be marked 

as required by the provisions of this part 

21; and 

(4) The number and expiration of your 

State permit if you are required to have 

one. 

(e) Term of permit. A waterfowl sale 

and disposal permit issued or renewed 

under this part expires on the date 

designated on the face of the permit 

unless amended or revoked, but the 

term of the permit will not exceed five 

(5) years from the date of issuance or 

renewal. 

■ 4. Add new § 21.54 to subpart D to 

read as follows: 

§ 21.54 Control order for muscovy ducks 

in the United States. 

(a) Control of muscovy ducks. 

Anywhere in the contiguous United 

States except in Hidalgo, Starr, and 

Zapata Counties in Texas, and in 

Alaska, Hawaii, and U.S. territories and 

possessions, landowners and Federal, 

State, Tribal, and local wildlife 

management agencies, and their tenants, 

employees, or agents may, without a 

Federal permit, remove or destroy 

muscovy ducks (Cairina moschata) 

(including hybrids of muscovy ducks), 

or their nests, or eggs at any time when 

found. Any authorized person may 

temporarily possess, transport, and 

dispose of muscovy ducks taken under 

this order. 

(b) Muscovy ducks in Hidalgo, Starr, 

and Zapata Counties in Texas. In these 

counties, take of muscovy ducks, their 

nests, and their eggs may be allowed if 

we issue a depredation permit for the 

activity. 

(c) Disposal of muscovy ducks. You 

may donate muscovy ducks taken under 

this order to public museums or public 

institutions for scientific or educational 

purposes, or you may dispose of them 

by burying or incinerating them. You 

may not retain for personal use or 

consumption, offer for sale, or sell a 

muscovy duck removed under authority 

of this section, nor may you release it 

in any other location. 

(d) Other provisions. (1) You must 

comply with any State, territorial, or 

Tribal laws or regulations governing the 

removal or destruction of muscovy 

ducks or their nests or eggs. 

(2) You may not remove or destroy 

muscovy ducks or their nests or eggs if 

doing so will adversely affect other 

migratory birds or species designated as 

endangered or threatened under the 

authority of the Endangered Species 

Act. If you use a firearm to kill muscovy 

ducks under the provisions of this 

section, you must use nontoxic shot or 

nontoxic bullets to do so. 

(3) If you operate under this order, 

you must immediately report the take of 

any species protected under the 

Endangered Species Act, or any other 

bird species protected under the 

Migratory Bird Treaty Act, to the Fish 

and Wildlife Service Ecological Services 

Office for the State or location in which 

the take occurred. 

(4) We reserve the right to suspend or 

revoke the authority of any agency or 

individual to undertake muscovy duck 

control if we find that the agency or 

individual has undertaken actions that 

may harm Federally listed threatened or 

endangered species or are contrary to 

the provisions of this part. 

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9322 Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 

Dated: February 3, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–3284 Filed 2–26–10; 8:45 am] 

BILLING CODE 4310–55–P 

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