[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Proposed Rules]
[Pages 49626-49631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19550]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[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: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose changes in 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 propose to revise 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. 
This will require a revision of Sec.  21.14 (permit exceptions for 
captive-bred migratory waterfowl other than mallard ducks) and a 
revision of Sec.  21.25 (waterfowl sale and disposal permits), and the 
addition of Sec.  21.54, an order to allow control of muscovy ducks, 
their nests, and eggs. We also have rewritten the affected regulations 
to make them easier to understand.

[[Page 49627]]


DATES: Send comments on this proposal by October 21, 2008.

ADDRESSES: You may submit comments, identified as comments on RIN 1018-
AV34, by either of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. Mail or hand delivery: Public Comments Processing, 
Attention RIN 1018-AV34; Division of Policy and Directives Management; 
U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, Suite 222; 
Arlington, VA 22203-1610.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.

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 four counties in 
southern Texas in which natural breeding has been confirmed. For that 
reason, we included this species in the proposed rule to revise the 
list of migratory birds found in 50 CFR 10.13 (71 FR 50193, Aug. 24, 
2006; 71 FR 75188, Dec. 14, 2006). We anticipate adding the species to 
the list when we finalize the regulation. However, we will not make a 
final decision on the Sec.  10.13 list before we make a final decision 
on this muscovy duck proposed rule.
    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 Cameron, 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)).

Public Participation

    We seek comments on any aspect of this proposed rule. You may 
submit your comments by either of the methods listed in the ADDRESSES 
section. We will not accept comments sent by email or by fax, or to an 
address not listed in the ADDRESSES section. We will not accept 
anonymous comments; your comment must include your first and last 
names, city, state, country, and postal (zip) code. Finally, we will 
not consider hand-delivered comments that we do not receive, or mailed 
comments that are not postmarked, by the date specified in the DATES 
section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in addition to the required items 
specified in the previous paragraph, such as your street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public view. However,

[[Page 49628]]

we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting documents, 
will be available for public inspection, by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, Division of 
Migratory Bird Management, 4401 North Fairfax Drive, Mail Stop 4107, 
Arlington, VA 22203-1610.
    When submitting written comments, please include your name and 
return address in your letter and identify it as comments on proposed 
rule RIN 1018-AV34. To facilitate compiling the administrative record 
for this action, you must submit written comments on 8\1/2\-inch by 11-
inch paper.

Required Determinations

Clarity of This Regulation

    Executive Order (E.O.) 12866 requires each agency to write 
regulations that are easy to understand. We invite your comments on how 
to make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the rule 
clearly stated? (2) Does the rule contain technical language or jargon 
that interferes with its clarity? (3) Does the format of the rule 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Would the rule be easier to understand 
if it were divided into more (but shorter) sections? (A ``section'' 
appears in bold type and is preceded by the symbol Sec.  and a numbered 
heading; for example: ``Sec.  21.54 Control order for muscovy ducks in 
the United States.'') (5) Does the description of the rule in the 
``Supplementary Information'' section of the preamble help you to 
understand the proposed rule? What else could we do to make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You also may e-mail comments to [email protected].

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 this proposed 
rule's potential effects on small entities as required by the 
Regulatory Flexibility Act, and have determined that this action would 
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 would very minimal costs, if any, associated with this 
regulations change. Consequently, we certify that because this proposed 
rule would not have a significant economic effect on a substantial 
number of small entities, a regulatory flexibility analysis is not 
required.
    This proposed rule is not a major rule under SBREFA (5 U.S.C. 
804(2)). It would not have a significant impact on a substantial number 
of small entities.
    a. This proposed rule would not have an annual effect on the 
economy of $100 million or more.
    b. This proposed rule would not cause a major increase in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions.
    c. This proposed rule would 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 proposed rule would not ``significantly or uniquely'' 
affect small governments. A small government agency plan is not 
required. Actions under the proposed regulation would not affect small 
government activities in any significant way.
    b. This proposed rule would 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 would not have significant 
takings implications. This proposed rule would not contain a provision 
for taking of private property. Therefore, a takings implication 
assessment is not required.

Federalism

    This proposed rule would not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under E.O. 13132. It 
would 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 would 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 proposed 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 
species from locations in

[[Page 49629]]

the United States and United States territories in which the species 
may have been introduced. We completed an Environmental Action 
Statement in which we concluded that the proposed regulations change 
allowing the removal of an introduced species requires no additional 
assessment of potential environmental impacts.

Environmental Consequences of the Proposed Action

    The primary change we propose is to prohibit release of the muscovy 
duck in locations in which it does not occur naturally. It has been 
introduced in other locations, where it is an invasive species that 
sometimes creates problems through competition with native species, 
damage to property, and transmission of disease. We propose to 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. This would require revisions 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 have no environmental impact. 
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 proposed rule would not have discernible 
socioeconomic impacts.
    Migratory bird populations. This proposed rule would not affect 
migratory bird populations.
    Endangered and threatened species. The proposed regulation is for 
migratory bird species that are not threatened or endangered. It would 
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 proposed regulations change would not affect listed species, and 
the Division of Migratory Bird Management has conducted an Endangered 
Species consultation on this proposed 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 proposed rule 
would 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 proposed rule 
would affect only import and export of birds in limited circumstances, 
it is not a significant regulatory action under E.O. 12866, and would 
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 propose to 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 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. 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 at 
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. If you possess captive-bred muscovy ducks, 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, including on 
private property, sell them to be hunted or released to the wild, or 
transfer them to

[[Page 49630]]

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 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, to another person, 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.
    (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.
    4. Add new Sec.  21.54 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 Cameron, Hidalgo, Starr, and Zapata Counties in Texas, 
and in Alaska, Hawaii, and U.S. territories and possessions; landowners 
and Federal, State, and local wildlife management agencies, and their 
tenants, employees, or agents may, without a Federal permit, remove or 
destroy muscovy ducks (Cairina moschata) 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) 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.
    (c) Other provisions. (1) You may not remove or destroy muscovy 
ducks or their nests or eggs if doing so is contrary to any State, 
territorial, or tribal laws or regulations.
    (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.
    (3) Persons operating under this order must immediately report the 
take of any species protected under the Endangered Species Act or any 
other 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

[[Page 49631]]

individual to undertake muscovy duck control if we find that agency or 
individual has undertaken actions that may harm federally listed 
threatened or endangered species or are contrary to the provisions of 
this part.

    Dated: August 8, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-19550 Filed 8-21-08; 8:45 am]
BILLING CODE 4310-55-P