[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9316-9322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3284]


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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