[Federal Register: March 1, 2010 (Volume 75, Number 39)]
[Rules and Regulations]
[Page 9314-9316]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr10-19]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
Docket Number [FWS-R9-MB-2007-0018; 91200-1231-9BPP]
RIN 1018-AV33
Migratory Bird Permits; Control of Purple Swamphens
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations
governing control of depredating or introduced migratory birds. The
purple swamphen (Porphyrio porphyrio) is not native to any State, and
competes with native species. However, we have added it to the list of
species protected under our Migratory Bird Treaty Act (MBTA)
obligations because it occurs naturally in the U.S. Territories of
American Samoa, Baker and Howland Islands, Guam, and the Commonwealth
of the Northern Mariana Islands. We amend the regulations to allow
removal of purple swamphens without a Federal permit in the following
areas where the species is not native: the contiguous United States,
Hawaii, Alaska, the Commonwealth of Puerto Rico, and the U.S. Virgin
Islands. This rule also requires the use of nontoxic shot or bullets if
firearms are used to control purple swamphens.
DATES: This rule will be effective on March 31, 2010.
FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-
1825.
SUPPLEMENTARY INFORMATION:
Background
The Fish and Wildlife Service is the Federal agency delegated the
primary responsibility for managing migratory birds. This delegation is
authorized by the MBTA (16 U.S.C. 703 et seq.), which implements
conventions with Great Britain (for Canada), Mexico, Japan, and the
Soviet Union (Russia).
We implement the MBTA through regulations found in title 50 of the
Code of Federal Regulations (CFR). In 50 CFR 10.13, we list all species
of migratory birds protected by the MBTA that are subject to the
regulations protecting migratory birds in title 50, subchapter B
(Taking, Possession, Transportation, Sale, Purchase, Barter,
Exportation, and Importation of Wildlife and Plants). In 50 CFR part 13
(General Permit Procedures) and part 21 (Migratory Bird Permits),
regulations allow us to issue permits for certain activities otherwise
prohibited in regard to migratory birds. In part 21, we issue permits
for the taking, possession, transportation, sale, purchase, barter,
importation, exportation, and banding and marking of migratory birds.
We also provide certain exceptions to permit requirements for public,
scientific, or educational institutions, and establish depredation and
control orders that provide limited exceptions to the MBTA.
Purple Swamphen
The purple swamphen, a chicken-sized bird in the family Rallidae,
is native to the Old World. In the United States and its territories,
it is native only in American Samoa, Baker and Howland Islands, Guam,
and the Northern Mariana Islands (Pratt et al. 1987). Because of the
species' occurrence in these territories, it is protected under the
MBTA Act (effective March 1, 2010.) Therefore, we included this species
in the proposed rule (71 FR 50194, August 24, 2006) to revise the list
of migratory birds found at 50 CFR 10.13. We proposed to add the
species to the list because it is in a group of species that belong to
families protected under treaties with Canada and Mexico.
The purple swamphen was introduced in southern Florida through
escapes from aviculturalists and from the Miami Metro Zoo in the early
1990s (Anonymous 2007). In Florida, the purple swamphen competes with
native species and may impact the plant life of wetlands (Anonymous
2007). The purple swamphen has an international reputation for eating
eggs and chicks, including ducklings, of other ground or near-ground
nesting species (Anonymous 2007). As far as we know, counties in the
southern half of Florida are the only place in the contiguous United
States, Hawaii, Alaska, the Commonwealth of Puerto Rico, or the U.S.
Virgin Islands where the purple swamphen is found.
This Control Order allows the removal of introduced purple
swamphens in the contiguous United States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the U.S. Virgin Islands from any
location where they are found. This removal is in keeping with our
other actions to reduce the spread of introduced species that compete
with native species or harm habitats that they use. (see http://
www.fws.gov/invasives/).
Comments on the Proposed Rule
We received two comments on the proposed rule published on August
22, 2008 (70 FR 49631-49634). One commenter stated that (1) purple
swamphens are not migratory and (2) are invasive and should be removed.
Though the species is a migratory bird species under the MBTA, it is
invasive in the continental U.S. and other locations outside its native
range. We agree with the commenter's assertion that the species should
be removed where it has been introduced by humans.
A State agency requested that ``the requirement to bury or
incinerate carcasses be removed. The nature of control programs, i.e.,
shooting purple swamphens in heavily vegetated habitat, precludes this
as a practical disposal method.'' We changed this rule to accommodate
this request.
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action. The Office of Management and
Budget makes the final determination of significance under E.O. 12866.
a. This rule will not raise novel legal or policy issues. The
provisions are in
[[Page 9315]]
compliance with other laws, policies, and regulations.
b. This rule does not have an annual economic effect of $100
million or more, or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. A cost-benefit and
economic analysis thus is not required. There will be no costs
associated with this rule.
c. This rule will not create inconsistencies with other agencies'
actions. The rule deals solely with governance of migratory bird
permitting in the United States. No other Federal agency has any role
in regulating activities with migratory birds.
d. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
There are no entitlements, grants, user fees, or loan programs
associated with the regulation of control of purple swamphens.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small entities (i.e.,
small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies that the rule does not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule does not have a significant economic impact on a
substantial number of small entities. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act, and we have determined that this action does not have
a significant economic impact on a substantial number of small entities
because the changes we are proposing are intended to allow removal of
an introduced species that competes with native species of wildlife.
Purple swamphens are not found in business areas, and we foresee no
effects of this rule on small businesses.
There will be no costs associated with this regulations change.
Consequently, we certify that because this rule does not have a
significant economic effect on a substantial number of small entities,
a regulatory flexibility analysis is not required.
This rule is not a major rule under the SBREFA (5 U.S.C. 804 (2)).
It does not have a significant impact on a substantial number of small
entities.
a. This rule does not have an annual effect on the economy of $100
million or more.
b. This rule will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
c. This rule does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with 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. It will not be a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. This rule will not contain a provision for taking of
private property.
Federalism
This rule does not have sufficient Federalism effects to warrant
preparation of a Federalism assessment under Executive Order 13132. It
will not interfere with the States' ability to manage themselves or
their funds. No significant economic impacts are expected to result
from control of purple swamphens.
Civil Justice Reform
In accordance with Executive Order 12988, we have determined that
the rule will not unduly burden the judicial system and that it meets
the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
We examined these regulations under the Paperwork Reduction Act of
1995. There are no information collection requirements associated with
this regulations change.
National Environmental Policy Act
We have analyzed this rule in accordance with the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. and
part 516 of the U.S. Department of the Interior Manual (516 DM). The
change we propose is to allow the removal of purple swamphens from
locations in the United States and its territories in which the species
may have been introduced. The environmental impacts of control of the
purple swamphen have already been addressed. The State of Florida
prepared a purple swamphen control plan and an environmental assessment
of State control actions. We completed an Environmental Action
Statement in which we concluded that the proposed regulations change
allowing the removal of this introduced species will have no
significant impact on the environment and, therefore, requires no
additional assessment of potential environmental impacts.
Socioeconomic. We do not expect the action to have discernible
socioeconomic impacts.
Migratory bird populations. This rule will not alter the take of
native migratory birds from the wild. It will not harm native migratory
bird populations.
Endangered and Threatened Species. The purple swamphen is not
threatened or endangered, and the regulations change will not affect
threatened or endangered species or habitats important to them.
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the
Interior] shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this chapter'' (16
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure
that any action authorized, funded, or carried out * * * is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). We have concluded that
the regulations change will not affect listed species, and the Division
of Migratory Bird Management has completed an Endangered Species
consultation on this rule confirming this conclusion.
[[Page 9316]]
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.
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); 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.
0
2. Add new Sec. 21.53 to subpart D to read as follows:
Sec. 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 Sec. 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 Sec. 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]
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