[Federal Register: March 1, 2010 (Volume 75, Number 39)]
[Rules and Regulations]
[Page 9316-9322]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr10-20]
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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.
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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 captive-bred migratory waterfowl other
than mallard ducks, and waterfowl sale and disposal permits, and the
addition of an order to allow control of muscovy
[[Page 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 free-
ranging 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 free-ranging 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 Sec. 21.25 to prohibit
sale or transfer of captive-bred muscovy ducks for hunting; and to add
Sec. 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 non-native 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
[[Page 9318]]
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
Federally-regulated migratory bird species. As such, it may be managed
under all relevant regulations. Hybrids of muscovy ducks in the wild
may be controlled under this regulation.
Issue. Production of muscovy ducks for food.
``* * * muscovy ducks are produced in the millions in the United
States generally for meat production * * *. No permits are needed to
possess domesticated barnyard fowl. This species is bought and sold
in the millions being the most commonly held species of waterfowl in
the United States.''
``I believe that problems associated with large feral
populations of muscovy ducks are from domesticated varieties raised
in captivity that have wandered, or allowed to free range, and not
from `wild' type muscovies imported from Latin America.
``The proposed regulation's goal of preventing additional human
introduction of Muscovy ducks has great merit. It is far better to
prevent populations from establishing than to subject more ducks to
control later. However, the proposed regulation limits acquisition,
possession, and propagation for some owners but not for others.
Accidental releases from food production are not addressed and could
continue to allow Muscovy populations to become established. No
clear reason is evident for targeting only Muscovies not in food
production to prevent additional introductions. Why are Muscovies in
food production excepted when this source of accidental releases may
be significant?
``The rule should be focused on controlling populations, both
feral and domestic, instead of destroying established populations.
By controlling populations, the Fish and Wildlife Service can
largely achieve the same goals without many of the potential harmful
side effects.''
Response. This rule is intended to limit production and releases of
muscovy ducks in locations in which the species is not native. However,
it is unusual because we will continue to allow ongoing commercial
endeavors with a species that was not protected under the MBTA. We are
aware of the production of muscovy ducks for food, and this rule is
intended to allow that production to continue. We will allow continued
production of muscovy ducks for food because we do not want to create
economic dislocation. We may review allowing possession for food
production in the future if escapes and releases from this source are
shown to be a problem. However, the regulations state that release of
muscovy ducks to the wild is not to be allowed, regardless of the
source of the birds.
Issue. Three commenters requested that use of OvoControlJ
(nicarbazin) be allowed under the control order.
``The HSUS supports non-lethal tools to resolve conflicts such
as when people feel Muscovy ducks are a nuisance. We strongly
recommend that the final regulation explicitly allows use of
contraceptive technology to control Muscovy ducks. Nicarbazin is
registered by the Environmental Protection Agency for Muscovy ducks.
It prevents egg and embryo development so that additional ducklings
do not hatch. This tool allows communities to humanely reduce flocks
without the controversy engendered by killing. Muscovy and other
ducks are much loved by some members of the community even where
they are considered a nuisance. Contraceptive technology must be
available for communities that rightly reject killing neighborhood
ducks.''
Response. As with control of some other bird species, particularly
Canada geese (Branta Canadensis), nicarbazin may be used if the
applicator has a migratory bird permit to use it. However, we will work
on the necessary Endangered Species consultation to allow use of
nicarbazin under this control order in the future.
Issue. USDA Wildlife Services requested that within Cameron,
Hidalgo, Starr, and Zapata counties in Texas, muscovy duck management
be allowed consistent with rules and regulations for other migratory
bird species, including take of birds and their nests and eggs.
Response. Control of Muscovy ducks in Hidalgo, Starr, and Zapata
counties (we removed Cameron county from the provisions in Sec. 21.54)
would be subject to the regulations for authorizing depredation permits
and our general permit regulations. We added language to Sec. 21.54 to
address this concern.
Issue. Capture and transfer of muscovy ducks, and muscovy ducks on
private property.
``Live-capture and transfer to responsible private ownership is
also a humane resolution for so-called nuisance ducks. While the
opportunities for such transfer are limited, where there are
potential new homes it is humane to the ducks and offers communities
an uncontroversial solution. With the proposed restrictions on
propagation and release, this resolution would also achieve the
regulation's goal. The final regulations should allow this option
for controlling Muscovy ducks.''
``The HSUS is very concerned about the proposed regulation's
impact on currently owned ducks who are not kept for food
production. As proposed, the regulations seem to outlaw these ducks.
It is not clear what USFWS expects will become of them but it seems
it would be illegal for their owners to continue to keep them. This
would be unreasonable and unnecessarily cruel for both the ducks and
their owners. Many people keep ducks as pets. Waterfowl
[[Page 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 foreign-based
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
[[Page 9320]]
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 Sec. 21.14 (permit exceptions for captive-bred migratory
waterfowl other than mallard ducks) and Sec. 21.25 (waterfowl sale and
disposal permits), and addition of Sec. 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 Sec. 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.
0
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
0
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.
0
2. Revise Sec. 21.14 to read as follows:
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.
0
3. Revise Sec. 21.25 to read as follows:
Sec. 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.
[[Page 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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.
0
4. Add new Sec. 21.54 to subpart D to read as follows:
Sec. 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.
[[Page 9322]]
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