9314 Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 

Telespiza ultima, Nihoa Finch 

Psittirostra psittacea, Ou 

Loxioides bailleui, Palila 

Pseudonestor xanthophrys, Maui 

Parrotbill 

Hemignathus virens, Hawaii Amakihi 

Hemignathus flavus, Oahu Amakihi 

Hemignathus kauaiensis, Kauai 

Amakihi 

Hemignathus ellisianus, Greater 

Akialoa 

Hemignathus lucidus, Nukupuu 

Hemignathus munroi, Akiapolaau 

Magumma parva, Anianiau 

Oreomystis bairdi, Akikiki 

Oreomystis mana, Hawaii Creeper 

Paroreomyza maculata, Oahu 

Alauahio 

Paroreomyza flammea, Kakawahie 

Paroreomyza montana, Maui 

Alauahio 

Loxops caeruleirostris, Akekee 

Loxops coccineus, Akepa 

Vestiaria coccinea, Iiwi 

Palmeria dolei, Akohekohe 

Himatione sanguinea, Apapane 

Melamprosops phaeosoma, Poo-uli 

Dated: February 3, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–3294 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–2007–0018; 

91200–1231–9BPP] 

RIN 1018–AV33 

Migratory Bird Permits; Control of 

Purple Swamphens 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, change the regulations 

governing control of depredating or 

introduced migratory birds. The purple 

swamphen (Porphyrio porphyrio) is not 

native to any State, and competes with 

native species. However, we have added 

it to the list of species protected under 

our Migratory Bird Treaty Act (MBTA) 

obligations because it occurs naturally 

in the U.S. Territories of American 

Samoa, Baker and Howland Islands, 

Guam, and the Commonwealth of the 

Northern Mariana Islands. We amend 

the regulations to allow removal of 

purple swamphens without a Federal 

permit in the following areas where the 

species is not native: the contiguous 

United States, Hawaii, Alaska, the 

Commonwealth of Puerto Rico, and the 

U.S. Virgin Islands. This rule also 

requires the use of nontoxic shot or 

bullets if firearms are used to control 

purple swamphens. 

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. This delegation is authorized by 

the 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 

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. 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. 

Purple Swamphen 

The purple swamphen, a chickensized bird in the family Rallidae, is 

native to the Old World. In the United 

States and its territories, it is native only 

in American Samoa, Baker and 

Howland Islands, Guam, and the 

Northern Mariana Islands (Pratt et al. 

1987). Because of the species’ 

occurrence in these territories, it is 

protected under the MBTA Act 

(effective March 1, 2010.) Therefore, we 

included this species in the proposed 

rule (71 FR 50194, August 24, 2006) to 

revise the list of migratory birds found 

at 50 CFR 10.13. We proposed to add 

the species to the list because it is in a 

group of species that belong to families 

protected under treaties with Canada 

and Mexico. 

The purple swamphen was 

introduced in southern Florida through 

escapes from aviculturalists and from 

the Miami Metro Zoo in the early 1990s 

(Anonymous 2007). In Florida, the 

purple swamphen competes with native 

species and may impact the plant life of 

wetlands (Anonymous 2007). The 

purple swamphen has an international 

reputation for eating eggs and chicks, 

including ducklings, of other ground or 

near-ground nesting species 

(Anonymous 2007). As far as we know, 

counties in the southern half of Florida 

are the only place in the contiguous 

United States, Hawaii, Alaska, the 

Commonwealth of Puerto Rico, or the 

U.S. Virgin Islands where the purple 

swamphen is found. 

This Control Order allows the 

removal of introduced purple 

swamphens in the contiguous United 

States, Alaska, Hawaii, the 

Commonwealth of Puerto Rico, and the 

U.S. Virgin Islands from any location 

where they are found. This removal is 

in keeping with our other actions to 

reduce the spread of introduced species 

that compete with native species or 

harm habitats that they use. (see 

http://www.fws.gov/invasives/). 

Comments on the Proposed Rule 

We received two comments on the 

proposed rule published on August 22, 

2008 (70 FR 49631–49634). One 

commenter stated that (1) purple 

swamphens are not migratory and (2) 

are invasive and should be removed. 

Though the species is a migratory bird 

species under the MBTA, it is invasive 

in the continental U.S. and other 

locations outside its native range. We 

agree with the commenter’s assertion 

that the species should be removed 

where it has been introduced by 

humans. 

A State agency requested that ‘‘the 

requirement to bury or incinerate 

carcasses be removed. The nature of 

control programs, i.e., shooting purple 

swamphens in heavily vegetated habitat, 

precludes this as a practical disposal 

method.’’ We changed this rule to 

accommodate this request. 

Required Determinations 

Regulatory Planning and Review 

In accordance with the criteria in 

Executive Order 12866, this rule is not 

a significant regulatory action. The 

Office of Management and Budget 

makes the final determination of 

significance under E.O. 12866. 

a. This rule will not raise novel legal 

or policy issues. The provisions are in 

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Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 9315 

compliance with other laws, policies, 

and regulations. 

b. This rule does not have an annual 

economic effect of $100 million or more, 

or adversely affect an economic sector, 

productivity, jobs, the environment, or 

other units of government. A costbenefit and economic analysis thus is 

not required. There will be no costs 

associated with this rule. 

c. This rule will not create 

inconsistencies with other agencies’ 

actions. The rule deals solely with 

governance of migratory bird permitting 

in the United States. No other Federal 

agency has any role in regulating 

activities with migratory birds. 

d. This rule will not materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. There are no 

entitlements, grants, user fees, or loan 

programs associated with the regulation 

of control of purple swamphens. 

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 that 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 

does 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 we 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 

to allow removal of an introduced 

species that competes with native 

species of wildlife. Purple swamphens 

are not found in business areas, and we 

foresee no effects of this rule on small 

businesses. 

There will be no costs associated with 

this regulations change. 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. 

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 does 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. It will not be a 

‘‘significant regulatory action’’ under the 

Unfunded Mandates Reform Act. 

Takings 

In accordance with Executive Order 

12630, this rule does not have 

significant takings implications. A 

takings implication assessment is not 

required. This rule will not contain a 

provision for taking of private property. 

Federalism 

This rule does not have sufficient 

Federalism effects to warrant 

preparation of a Federalism assessment 

under Executive Order 13132. It will not 

interfere with the States’ ability to 

manage themselves or their funds. No 

significant economic impacts are 

expected to result from control of purple 

swamphens. 

Civil Justice Reform 

In accordance with Executive Order 

12988, we have determined that the rule 

will not unduly burden the judicial 

system and that it 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. 

There are no 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 of 1969 

(NEPA), 42 U.S.C. 4321 et seq. and part 

516 of the U.S. Department of the 

Interior Manual (516 DM). The change 

we propose is to allow the removal of 

purple swamphens from locations in the 

United States and its territories in 

which the species may have been 

introduced. The environmental impacts 

of control of the purple swamphen have 

already been addressed. The State of 

Florida prepared a purple swamphen 

control plan and an environmental 

assessment of State control actions. We 

completed an Environmental Action 

Statement in which we concluded that 

the proposed regulations change 

allowing the removal of this introduced 

species will have no significant impact 

on the environment and, therefore, 

requires no additional assessment of 

potential environmental impacts. 

Socioeconomic. We do not expect the 

action to have discernible 

socioeconomic impacts. 

Migratory bird populations. This rule 

will not alter the take of native 

migratory birds from the wild. It will 

not harm native migratory bird 

populations. 

Endangered and Threatened Species. 

The purple swamphen is not threatened 

or endangered, and the regulations 

change will not affect threatened or 

endangered species or habitats 

important to them. 

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 

will not affect listed species, and the 

Division of Migratory Bird Management 

has completed an Endangered Species 

consultation on this rule confirming this 

conclusion. 

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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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