(I copied Mac_'s post since all the detail was already laid out. Reposting here to make it easier for others to find.)
The new rules have been published for public comment.
You can only submit comments that will be considered as outlined in the proposed rules.
Link to text version of proposed rule: http://edocket.access.gpo.gov/2010/2010-23139.htm
Link to PDF version of proposed rule: http://edocket.access.gpo.gov/2010/pdf/2010-23139.pdf
We will need to refer back to 21.13 for the marking options. Link to 21.13: http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/50cfr21.14.pdf
My primary objection is as follows. Muscovy have been domesticated since the 1500s. They are domesticated livestock. As such, they are not subject to these marking requirements.
We have until Dec 30, 2010 to send our comments. I suggest that we do our homework first, so that we can present well thought out arguments.
From the proposed rules:
ADDRESSES: You may submit comments
by either one of the following methods:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments
on Docket No. FWS-R9-MB-2010-0037.
U.S. Mail or hand delivery: Public
Comments Processing, Attn: FWS-R9-
MB-2010-0037; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 North Fairfax
Drive, Suite 222; Arlington, VA 22203-
We will not accept e-mail or faxes. We
will post all comments on http://
www.regulations.gov. This generally
means that we will post any personal
information that you provide. See the
Public Comments section below for
We request comments or suggestions
on this proposed rule from any
interested parties. You may submit your
comments and materials concerning this
proposed rule by one of the methods
listed in the ADDRESSES section. We will
not consider comments sent by e-mail or
fax or to an address not listed in the
If you submit a comment via http://
www.regulations.gov, your entire
commentincluding any personal
identifying informationwill be posted
on the Web site. If you submit a
hardcopy comment that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy comments on
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection at
http://www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service (see FOR FURTHER INFORMATION
CONTACT). You may obtain copies of our
previous actions concerning this subject
by mail (see FOR FURTHER INFORMATION
CONTACT) or by visiting the Federal
eRulemaking Portal at http://
From 21.13, marking options:
(b) All mallard ducks possessed in
captivity, without a permit, shall have
been physically marked by at least one
of the following methods prior to 6
weeks of age and all such ducks
hatched, reared, and retained in captivity
thereafter shall be so marked
prior to reaching 6 weeks of age.
(1) Removal of the hind toe from the
(2) Pinioning of a wing: Provided,
That this method shall be the removal
of the metacarpal bones of one wing or
a portion of the metacarpal bones
which renders the bird permanently incapable
(3) Banding of one metatarsus with a
seamless metal band.
(4) Tattooing of a readily discernible
number or letter or combination thereof
on the web of one foot.
CFR 21.54 - Muscovy Duck
The Muscovy Duck now occurs naturally in southern Texas, so it has been added to the list of birds protected by the Migratory Bird Treaty Act (50 CFR 10.13). This species has been introduced in other areas throughout the U.S. where it is an exotic species, and it is widely raised in captivity for food.
To control the spread of Muscovy Ducks in areas outside their natural range, the Service also published a Control Order (50 CFR 21.54) that allows control of feral Muscovy Ducks, their nests, and eggs in areas outside their natural range (50 CFR 21.54). Other regulations finalized at the same time as the listing and Control Order that restrict possession of Muscovy Ducks and require a permit to sell captive-bred Muscovy Ducks for food will not be administered at this time because the Service plans to revise those regulations in the near future.
thanks to jimsfarmstand for pointing out the official position of the FWS!
Here's a post by TomNY that outlines the steps the FWS must go through in order to change the regulations:
I talked to Dr. Allen. Three things must happen to get the regulation changed. First the FWS must have proof that there is such a thing as domestic Muscovies. The IWBA and APA are working on this. Jim Konecny left me a message yesterday saying the IWBA response was sent. The APA Standard Revision Committee expected to have their information sent this week. Secondly public input must be received by Dr. Allen. Only fourteen responses were received during the comment period. George_T_Allen@FWS.gov is the email address he gave me to have comments sent to him. This is important. Dr. Allen wants input. Third, once the distinction is made between feral domestic Muscovies and invasive wild Muscovies the states with a feral Muscovy problem will have to design a plan to deal with it on a state-wide level. I got the impression that if things go well it may be possible to have Domestic Muscovies exempted from the regulations. Tom
Here's another update from parrotchick:
Some good news may be forthcoming, though hard to say when. My friend who works in the Migratory Birds Division of FWS just called me to tell me that she was forwarded a memo today saying something to the effect that FWS has taken our comments into strong consideration and is likely planning to make the sale and possession of muscovies legal. I am not sure the channels they will need to take to make this actually happen. I spoke to a law professor friend yesterday who said these "legislative regulations" (those that have had public comment periods) can take a while to change, often months, just because of procedures that need to be followed. Congress can stop a federal regulation, but are not likely to do it unless it's an emergency where "there are bodies piling up." So perhaps there was a legal loophole whereby an even newer reg (maybe an"interpretive" one, the other kind of federa reg) subercedes the one that just went through. I don't know; I'm sure it's something keeping their legal department busy. But the long and short of it is that the people who can change the reg are willing to change it and are doing what they can in the confines of the law to make it happen.
So maybe it was our comments, along with the involvement of the APA and other organizations, that made our concerns known, but it sounds like we will be able continue doing our thing with muscovies, short of releasing them into the wild (preaching to the choir here on that point I'm sure). To mix metaphors, you don't need to do handstands just yet, but you can also call off the hounds. I'll keep you posted as I know more. Thanks to everyone who got involved and and took the time to share the information.
The FWS has been contacted multiple times on this matter and are working to develop a solution that will balance the needs of everyone. The APA and IWBA are in communication with Dr George Allen (Chief of Permits and Regulations branch of the Division of Migratory Birds Management of the Fish and Wildlife Service).
At this time, further contact directly with Dr George Allen is unnecessary and likely to only reduce his efficiency in dealing with this matter. I highly recommend that we cease contacting Dr Allen directly but continue sending letters to representatives and senators to ensure that we have their support (changing the regulations this close to when they go into effect my require their intervention).
I will be updating this post with more information as I have time
All information here is based on my understanding of what I have read. I very well could be incorrect in my interpretation - do not assume that everything I have posted is accurate. I urge everyone to read the new regulations for themselves and draw their own conclusions.
George Allen, Chief of the Migratory Birds division at Fish and Wildlife Service, has been contacted by Parrotchick (one of the forum members here at BYC).
George has stated that FWS is willing to amend the regulations, but needs to ensure it is done legally. He is looking into what the correct protocol is for amending the regulations in the period of time between issuing the final ruling and the date it goes into effect. FWS must also take into account that the groups pushing for this new regulation want it passed soon so they can deal with the feral populations.
George stated that backyard/private ownership of muscovies for meat and/or eggs is reasonable to add to the regulation, but not pet ownership. I assume this would also allow for breeding of muscovies wherever local laws allow it.
Why was this new regulation created?
In prior years Muscovy ducks were not considered a native species in the US. As such they had NO protection by federal law or international agreements. Nuisance muscovies were dealt with by local government and were considered an invasive species by the federal authorities (FWS).
Muscovy ducks have naturally expanded their natural habitat to include areas of southern Texas. Because these are believed to be wild birds with only wild bird ancestors, they are now a native bird within the US (but limited to only 3 counties in Texas). From what I understand, they were studied to determine if they truly were wild birds or really feral birds.
Because they are now a native species in the US, the Migratory Bird Treat Act of 1918 applies to them in the US and they legally fall under the jurisdiction of the Fish and Wildlife Service (Migratory Bird division).
The MBTA and federal regulations makes it impossible for local governments to legally eliminate nuisance birds. In order to give local governments the legal authority to deal with feral populations, the regulations over muscovies needed to be added to the current migratory bird regulations.
The requests for the regulation changes were made by the local governments at the request of the affected citizens. This was not a case of creating regulations for the sake for creating regulations - the FWS was reacting to the requests of local governments and citizens.
In August 2008, the FWS drafted a proposed change to the regulations and requested input by the community. They followed the legal requirements for making the proposal public. It is the responsibility of the citizens to respond in a timely manner if they want to prevent a regulation from passing. It is unfortunate that the muscovy owning community heard about the regulation much later, but this is not due to underhanded tactics by the government.
The FWS was not aware of the citizens that raised muscovy ducks for personal consumption or shows. While it is questionable on whether or not they should have done more research into the matter, that is immaterial at this point. The proposal from August 2008 and associated request for responses should have brought this to their attention, but nobody took the time to contact them through official channels. Due to this joint failure on the parts of both the FWS and muscovy community, the regulations were passed without taking these communities into account.
The regulations were amended to give the local governments the authority to handle non-native populations of muscovies. The restriction on ownership and release of domesticated muscovies was included to help reduce the introduction of muscovies into the wild as an invasive species. The populations that naturally expanded their range are protected by federal law.
Can't we just ignore the new regulation? They can't really enforce it!
This is unconstitutional, we shouldn't have to jump through hoops to get what we want
Yes, you can probably just ignore the new regulations and "get away with it."
However, this is no different than ignoring the speed limit when driving. You can get away with it most of the time, but you have no legal recourse if you get a ticket for speeding. Same would apply to owning muscovy ducks. If they take away your ducks or issue a fine, you really can't do anything about it.
Whether or not the FWS really has the authority to enact this regulation is a separate issue altogether. That fight should be separated from this one if you want to be taken seriously. It is not human nature to take someone seriously when they are told that they need to change a rule because they didn't have the right to make the rule in the first place. Think about it this way: if you don't have the authority to create a rule, then by that same argument you don't have the authority to reverse it either. So why even bother?
An organized and rational approach to changing the regulations is in everyone's long term best interest. Emotional responses or arguments based on more abstract concepts only hinder the ability to work cooperatively with the appropriate authorities.
The Fish and Wildlife Service passed a new regulation that is effective March 31, 2010, that makes it illegal to own or possess muscovy ducks in the US except for food production.
They will grandfather any muscovies owned prior to 3/31 but will not allow breeding.
I incorrectly noted that this was a new law in my original post. This is actually a new regulation which does not get passed the same way as laws. The FWS did not try to slip this under our noses. They followed the correct process and this regulation was open for public comments since August 2008.
If that link isn't working for you, go to the Migratory Bird section of the Fish and Wildlife Services website. There is a direct link from there:
Here is a link to the original 2008 proposal on the updated regulations:
Basically, muscovies are considered an invasive species so they are trying to reduce/eliminate the feral muscovy populations.
Directly from the document listed above:
(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.
The Fish and Wildlife Service considers Muscovies to be an invasive species. In order to protect the native migratory waterfowl species, they are trying to reduce the feral muscovy population in the US.
These new rules will go into effect on 3/31/10. The FWS requested responses from the public in 2008. From what I read, this was not widely known about. One of the posters in this thread contact the APA secretary who did not know about these new rules. This is NOT due to underhanded tactics by the government they followed the correct protocols. This is an unfortunate side effect of large government inefficiencies.
The protection of migratory birds is part of the Migratory Bird Treaty Act of 1918 . This is an international treaty that the USA is an original signee to.
FWS DOES have the authority to regulate muscovy ducks. Muscovy ducks naturally expanded their range to include parts of southern Texas which apparently makes them legally migratory birds. However, the migratory status is irrelevant. The FWS has authority over all native birds in the US (which the Muscovy is now considered to be). Arguing jurisdiction of the FWS over muscovies is a fruitless endeavor we should be concerned with amending the regulation to account for personal use.
The new rules by the FWS are meant to give the local authorities the ability to deal with feral muscovy populations. It allows them to exterminate the feral population and help prevent the release of domesticated muscovies by making it illegal to possess muscovies or their eggs. The FWS stated that the law was updated at the request of state and local governments. Areas such as Florida have severe muscovy duck problems and this update to the regulations would allow local governments to legally deal with them. Please remember that muscovies are protected under MBTA, so this regulation is necessary to give local authorities the legal right to control feral populations.
There are a couple exceptions to this rule:
1. Any privately owned muscovies in your possession prior to 3/31/2010 may be legally kept.
1a. You may NOT transfer ownership of the muscovies - not even giving them away for free - unless you have a permit filed with FWS.
1b. You may NOT propagate (breed) your muscovies
2. Muscovies can be kept and propagated for food purposes.
2a. The new rules do not explicitly explain what the new rules are. (meat only, eggs only, or meat and eggs)
2b. The rules suggest that a permit is needed but is not clear on the matter.
2c. Based on a literal reading of the rules and the responses from the FWS, this exception is most likely not for backyard ducks.
Previously the release of muscovies into the wild was made illegal by local laws. This new law makes it illegal at a federal level. I hope that we all can agree that this is one of the few good parts of the updated law (communities without any laws against the release of muscovies into the wild do not need to pass new laws).
The FWS have suggested that enforcement will be handled by local authorities and they have no intention of checking our private property for illegal ducks.
Who to contact to change the FWS regulations
If you want to have this law changed to allow for non-meat use, contact your Senators and representative. Even if you do not beleive they will do something, you should contact them anyway so there is a paper trail of support for repealing this law.
To find your representative's contact info, use the search in the upper left hand corner of this page:
To find your Senators' contact info, use the search in the upper right hand corner of this page:
If anybody knows which congressional committee oversees the FWS, please post that info
An online petition has been started. If you want to sign it, go here:
Here are some additional people to contact in Congress:
House Committee on Natural Resources.
If your representative is on this committee, point that out in your letter.
Also send a letter to:
Nick Rahall (Chairman of the committee)
Doc Hastings (ranking minority member for the committee)
Senate Committee on Environment and Public Works.
If your Senator is on this committee, point that out in your letter.
Also send a letters to:
Barbara Boxer (Chairman of the committee)
James Inhofe (ranking minority member for the committee)
Benjamin Cardin (Water and Wildlife subcommittee chairman)
Mike Crapo (Water and Wildlife subcommittee ranking minority member)
The Fish and Wildlife Services reports to the Department of the Interior (Presidential Cabinet Department). You can contact the current secretary with complaints:
Ken Salazar (Secretary of the Interior)
The following contact information was provided by FWS in the FWS rules document I cited above:
Because the FWS is leaving the enforcement of the regulations to local governments, it would be beneficial to contact your local government on this matter. If you do this, please request that the local government not waste any resources enforcing the regulations (except for the illegal release of muscovies). Do not ask them to ignore the FWS regulations or create laws that would make exceptions locally as this is not likely to work and may actually encourage them to enforce the new regulations
Additional contact info (thanks to Downhome)
Ken Salazar , Secretary of the Interior
702 Hart Senate Office Building
Washington, D.C. 20510-0606
DC Phone: 202-224-5852
DC Fax: 202-228-5036
District Office- Colorado Springs:
3 South Tejon, Suite 300B
Colorado Springs, CO 80903
District Office- Denver:
2300 15th Street, Suite 450
Denver, CO 80202
District Address - Durango:
835 East 2nd Avenue, Suite 203
Durango, CO 81301
District Office- Fort Collins:
11 Old Town Square, Suite 260
Fort Collins, CO 80524
District Office- Grand Junction:
400 Rood Avenue, Suite 213
Grand Junction, CO 81501
District Office- Pueblo:
129 West B Street
Pueblo, CO 81003
U.S. Fish and Wildlife Service
1849 C Street, NW
Washington, DC 20240
the guy in charge U.S. Fish and Wildlife Service Acting Director Rowan Gould and of course I couldnt turn up a phone number!
More from Jimsfarmstand (who also took the initiative to contact the APA and inform them of this new regulation)
Spoke with both US Senator Blanch Lincoln (Arkansas) and US Senator Mike Pryor (Arkansas) offices today. They both looked up the regulation while I was on the phone. Senator Pryor's office needs a hand written request from me. Lincoln's office is looking into it. Senator Lincoln is chair of the Senate Agricultural committee! Everyone should call Senator Lincoln's office and insist action! She is more able to assist than almost anyone else.
Here is a letter template you can use to contact your representative and senators:
Dear Rep/Senator XXXX
I am a resident of (state or congressional district goes here). I am contacting you in regards to the recent regulation by the Fish and Wildlife Service (CFR 21.54) regarding Muscovy Ducks.
This new regulation makes it illegal for private citizens or organizations to possess muscovy ducks. While I understand the need to pass regulations that help control the feral muscovy duck problem in some communities in the United States, I feel that this new regulation overextends the rights of the FWS in regards to private ownership of muscovy ducks.
With the new regulation the following would no longer be permissible:
1. Owning muscovy ducks as pets. While it may seem odd that people would keep ducks as pets, there is a significant population in the US that does so. While we could have other ducks as pets, muscovy ducks tend to be more community friendly as they do not make loud vocalizations (quacks) that most other domestic ducks do.
2. Raising muscovy ducks for private consumption of meat or eggs. The new regulations only allows for possessing muscovy ducks for food production, but requires permits from the FWS. This effectively makes raising muscovy ducks impossible for non-business entities. As I'm sure you know, it is very important for the future of this country to develop sustainable food production. Backyard flocks of chickens and ducks, including muscovy ducks, can assist with sustainability as it allows for the use of residential land to produce food.
3. Raising muscovy ducks for competition. Muscovy ducks are a recognized breed by the American Poultry Associate (APA) and are used in competitions. The inability to breed muscovy ducks for any reason other than food production would take away the ability for breeders to continue breeding and showing muscovy ducks. I believe this flies in the face of one of the major tenets that this country is founded on - life, liberty, and the pursuit of happiness.
I urge you to consider the detrimental effect the new regulations will have on your constituents and American citizens as a whole. I hope your conscience will guide you towards modifying this regulation to restore a small amount of freedom to duck loving citizens of our great nation.
I have also sent a copy of this letter to **insert your senators and representative here)*** as well as members of the House Committee on Natural Resources, the Senate Committee on Environment and Public Works, Secretary of the Interior Ken Salazar, and the Fish and Wildlife Service.
Thank you for taking the time to read my concerns. I am a registered voter and will take your actions on this matter into account when voting.
Here is another letter drafted by Dances with Ducks if you prefer this one:
I am contacting you in regards to the recent regulation by the Fish and Wildlife Service (CFR 21.54) regarding Muscovy Ducks. This regulation creates dismaying legal and policy issues. There have been people raising Muscovy for personal use for generations, and there are a fair number of breeders for whom the Muscovy is a substantial part of their business. As the regulation is written the breeders they will suddenly be devastated unless they are selling only to properly permitted agribusinesses. Many unique strains and colors of the Muscovy have been developed by fanciers of this breed and have been included in large poultry shows for decades. This wonderful part of our American culture will be lost. Keeping livestock requires regularly bringing in new bloodlines to keep inbreeding from damaging the lines, breeders need to be able to freely purchase, choose and cull in order to maintain good breeding stock.
The situation this new regulation suddenly presents to tens of thousands of people with an interest in the Muscovy duck is astounding! Private owners will be denied the opportunity as they have enjoyed for many years to be able to take advantage of the unique characteristics of this breed. The growing urban farming movement is quickly realizing the benefit of the Muscovys unusually quiet nature. Muscovy have a particular value in incubating other breeds of waterfowl as they can incubate as many as three clutches a year, many people utilize them for this quality alone. Their exceptionally ability to eradicate mosquitoes is highly appreciated. They are fine egg layers with a unique protein type needed by many individuals with allergy issues. Because they are considered to be the best meat duck by far, it is very important that people should be continued the right to raise them for their own food purposes. The many overall useful qualities of this duck create a strongly unique value to a small farmer.
Addressing feral invasive populations is and should be within the purview of the Fish and Wildlife Service. Addressing domestic populations should absolutely not be the concern of FWS. What is an invasive in one place is not necessarily in another. Regulate release into the wild in areas where they are invasive, not maintaining them in home flocks. Domestically bred Muscovy will not survive in climates with colder winters without help from humans. Regulations restricting ownership in these regions of the country are not reasonable.
In order to mitigate the invasive species concerns regarding the Muscovy duck and yet retain the property rights of American citizens, I adamantly request that the regulations be rewritten in a manner that will require that purchasers sign a dated statement acknowledging that release into the wild is prohibited; that doing so can result in considerable penalties. Also included in the rewritten regulation should be a requirement that states with invasive feral populations must institute a Muscovy hunting season as they can with other species of birds. Considering the enormous and unprecedented impact upon private livestock ownership, restrictions on purchase or ownership of Muscovy duck beyond these areas are beyond the reasonable purview of FWS
Edited by Duck_feeder - 10/1/10 at 10:39pm