[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Proposed Rules]
[Pages 49631-49634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19552]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[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: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose changes in 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 proposed to 
add it to the list of species protected under our Migratory Bird Treaty 
Act obligations because it does occur naturally in American Samoa. We 
propose to amend 50 CFR part 21 to allow removal of purple swamphens in 
the contiguous United States, Hawaii, Alaska, Puerto Rico, and the U.S. 
Virgin Islands.

DATES: We must receive all comments on this proposal by October 21, 
2008.

ADDRESSES: You may submit comments, identified as comments on RIN 1018-
AV33, 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-AV33; 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. This 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 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, and in the United States and its 
territories is native only in American Samoa. Because of the species' 
occurrence in American Samoa, it is protected under the Migratory Bird 
Treaty Act. We included this species in the proposed rule (71 FR 50194, 
August 24, 2006) to revise the list of migratory birds found in 50 CFR 
10.13. In the United States, the purple swamphen occurs naturally only 
in the Pacific Island territories of American Samoa, Baker and Howland 
Islands, Guam, and the Northern Marianas Islands (Pratt et al. 1987). 
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. We anticipate that we will add the species to the list when 
we finalize the regulation. However, we will not make a final decision 
on the proposed Sec.  10.13 list before we make a final decision on 
this purple swamphen proposed rule.
    The purple swamphen was introduced in southern Florida through 
escapes from aviculturalists and from the Miami Metro Zoo in the early 
1990s. In Florida, the purple swamphen competes with native species and 
may impact the plant life of wetlands. The purple swamphen has an 
international reputation for eating eggs and chicks, including 
ducklings, of other ground or near-ground nesting species. As far as we 
know, counties in the southern half of Florida are the only place in 
the contiguous United States, Hawaii, Alaska, Puerto Rico, or the U.S. 
Virgin Islands where the purple swamphen occurs.
    We propose to allow removal of introduced purple swamphens in the 
contiguous United States, Alaska, Hawaii, 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. 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, 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

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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 
regulations change RIN 1018-AV33. 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 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.  21.12 General exceptions to permit 
requirements.'' (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 the Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240-0001. 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 Planning and Review

    In accordance with the criteria in Executive Order 12866, this 
proposed rule would not be a significant regulatory action. The Office 
of Management and Budget makes the final determination of significance 
under E.O. 12866.
    a. This proposed rule would not raise novel legal or policy issues. 
The proposed provisions are in compliance with other laws, policies, 
and regulations.
    b. This proposed rule would 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 would be 
no costs associated with this proposed rule.
    c. This proposed rule would 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 proposed rule would 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 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 we 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 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 proposed rule on small businesses.
    There would be no costs 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 the 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. It would not be a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with Executive Order 12630, the rule would not have 
significant takings implications. A takings implication assessment is 
not required. This proposed rule would not

[[Page 49633]]

contain a provision for taking of private property.

Federalism

    This proposed rule would not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under Executive Order 
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 purple swamphens.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule would 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 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 to remove a species 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 a NEPA assessment of State control actions. 
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.
    Socioeconomic. We do not expect the proposed action to have 
discernible socioeconomic impacts.
    Migratory bird populations. This proposed rule would not alter the 
take of native migratory birds from the wild. It would not harm native 
migratory bird populations.
    Endangered and Threatened Species. The purple swamphen is not 
threatened or endangered, and the proposed regulations change would 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 proposed regulations change would not affect listed species, and 
the Division of Migratory Bird Management has completed an Endangered 
Species consultation on this proposed rule confirming 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), 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 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 (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 proposed rule only affects control of invasive purple 
swamphens at limited locations, it would not be a significant 
regulatory action under Executive Order 12866, nor would it 
significantly affect energy supplies, distribution, or use. This action 
would not be a significant energy action, and no Statement of Energy 
Effects is required.

References

    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 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 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 read as follows:


21.53  Control order for purple swamphens in the contiguous United 
States.

    (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, 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 do so.
    (b) Disposal of purple swamphens. Authorized persons may donate 
purple swamphens taken under this order to public museums or public 
institutions for scientific or educational purposes, or they may 
dispose of the carcasses by burial or incineration. No one may retain 
for personal use, offer for sale, or sell a purple swamphen removed 
under this section.
    (c) Other provisions. (1) Authorized persons 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) Authorized persons 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, while operating under this regulation, an authorized person 
takes

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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.
    (4) 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).

    Dated: August 8, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-19552 Filed 8-21-08; 8:45 am]
BILLING CODE 4310-55-P