[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]



Fish and Wildlife Service

50 CFR Part 21

Docket Number [FWS-R9-MB-2007-0018; 91200-1231-9BPP]
RIN 1018-AV33

Migratory Bird Permits; Control of Purple Swamphens

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations 
governing control of depredating or introduced migratory birds. The 
purple swamphen (Porphyrio porphyrio) is not native to any State, and 
competes with native species. However, we have added it to the list of 
species protected under our Migratory Bird Treaty Act (MBTA) 
obligations because it occurs naturally in the U.S. Territories of 
American Samoa, Baker and Howland Islands, Guam, and the Commonwealth 
of the Northern Mariana Islands. We amend the regulations to allow 
removal of purple swamphens without a Federal permit in the following 
areas where the species is not native: the contiguous United States, 
Hawaii, Alaska, the Commonwealth of Puerto Rico, and the U.S. Virgin 
Islands. This rule also requires the use of nontoxic shot or bullets if 
firearms are used to control purple swamphens.

DATES: This rule will be effective on March 31, 2010.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-



    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://

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 
    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 

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.


    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.


    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.


    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:


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 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 
    (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]