Muscovies in US - REGULATION CHANGES OPEN FOR COMMENTS - 10/1 update

[tnchickenut]

I wish I didn't read this right before I'm supposed to go to bed! I feed about 100 of them at a local park... I don't skimp either... I go to the feed store and buy them 50# bags of waterfowl feed! (only for winter suppliments though)
I have become very attached to a few. Maybe I should snatch them. They most definately will be "exterminated" since it is a city park.

 

[houndit]

Great work ! We already have 93 signatures on the petition. Contacting the APA was a really good idea!

 

[Sonoran Silkies]

Due to the apparent inability to link to the law and the lack of APA knowledge, I am truly wondering is this is real or some myth. I have a strong feeling it may be the later.

 

[houndit]

Quote:
I tried again and I was able to get through. Below is the full text.


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 Unpublished document,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 organization 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 organization 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
VerDate Nov<

 

[HallFamilyFarm]

Quote:
I spoke with the regional office of FWS. It is real. They said that this regulation over rides the APA Standard. They don't care. I pointed out that Miami FL has over 30,000 feral chickens. Are they going to outlaw chickens? He laughed. Said the Migratory Bird Treaty Act? with Canada, UK, Japan required this ruling and law. What do we have to do with these countries? Our Counstitution protects us. This is like the Supreme Court Justice that said we must consider "International Laws". This is the USA! Or at least I thought it was.

 

[tnchickenut]

Quote:
God, I hope you're right. I am so attached to one I simply call "buddy" out at previously mentioned park. I can't stand the thought of someone "exterminating" him. I already worry all the time with the kids and dogs in the park. Now, I'll be worrying about this! UGH!

 

[Dances with Ducks]

I'm thinking about all the duck people I know who don't subscribe to this website. I just sent out one email and will do more tomorrow.
This all should have happened in 2008, but if enough people raise a ruckus now the feds will have to rethink it, I hope. Sometimes they do have to change their laws, I know it happed with dietary supplements when they tried to get crazy about that. You have to always keep watching them though.
The media person a couple of pages back was a good idea, not sure how to organize this for her though. I don't do facebook anyway.

 

[tnchickenut]

Quote:
I spoke with the regional office of FWS. It is real. They said that this regulation over rides the APA Standard. They don't care. I pointed out that Miami FL has over 30,000 feral chickens. Are they going to outlaw chickens? He laughed. Said the Migratory Bird Treaty Act? with Canada, UK, Japan required this ruling and law. What do we have to do with these countries? Our Counstitution protects us. This is like the Supreme Court Justice that said we must consider "International Laws". This is the USA! Or at least I thought it was.

No, our Constitution is SUPPOSED to protect us. I don't think it's much more than a piece of paper much anymore.

 

[strega78]

I think this is totally BS.....not that someone is starting drama or anything....I think the fact they are going to outlaw them is BS. I also think this is just another way for the Government to control what we can have and the fact that they are going to get money from the permits. I have looked online and have not seen any sites that actually state the new BS law. All I have seen was alot of talk on blog type sites. Oh and I signed the petition and will be letting all I know that love this breed to sign.

 

[lovesduckies]

you know what, this country makes me so mad sometimes. we worry about stupid stuff so much that people get side tracked and forget about real problems we have. for example i have a neighbor who drives around with no license and sells drugs. we have told the police several times and he has never gotten pulled over or arressed for selling drugs in my neighborehood IN FRONT OF HIS CHILDREN. i get pulled over with my dad and they search his car for REGISTRATION. and now they want to tell me i have to tell my muscovy drake that he has to keep it in his feathers??? this is really stupid! i can't believe how stupid this "free" country is sometimes.