[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Proposed Rules]
[Pages 60691-60694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23139]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-R9-MB-2010-0037]
[91200-1232-0000]
RIN 1018-AX24


Migratory Bird Permits; Revisions to the Waterfowl Permit 
Exceptions and Waterfowl Sale and Disposal Permits Regulations for 
Muscovy Ducks

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, propose to revise the 
regulations regarding permit provisions for waterfowl. Specifically, we 
propose to revise certain permit provisions for the muscovy duck 
(Cairina moschata) at 50 CFR 21.14, 21.25, and 21.54. We take this 
action to address public concerns resulting from a final rule we 
published on March 1, 2010 (75 FR 9316), that revised the regulations 
for the muscovy duck. We request comments from the public on these 
proposed changes to the regulations.

DATES: Send comments on this proposal on or before December 30, 2010.

ADDRESSES: You may submit comments by either one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R9-
MB-2010-0037.
     U.S. Mail or hand delivery: Public Comments Processing, 
Attn: FWS-R9-MB-2010-0037; 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 muscovy duck is native to Mexico, and Central and South 
America. However, the species has recently expanded its range into 
Hidalgo, Starr, and Zapata Counties in south Texas. As a result of this 
natural expansion into the United States, on March 1, 2010, we 
published a final rule (75 FR 9282) adding the muscovy duck (Cairina 
moschata) to the List of Migratory Birds protected under the Migratory 
Bird Treaty Act (MBTA) (16 U.S.C. 703-12).
    The muscovy duck has been introduced through human intervention to 
many parts of the United States. These feral muscovy ducks may appear 
much different than the muscovy duck in its native range, but 
biologically they are still Cairina moschata, and thus are accorded the 
protection of the MBTA. To reduce the spread of muscovy ducks in the 
wild, 50 CFR 21.14(g) prohibits the release of captive-reared muscovy 
ducks to the wild.
    On March 1, 2010, we also published a final rule that, among other 
things, established a control order to manage feral populations (75 FR 
9316). The control order at 50 CFR 21.54 allows landowners and Federal, 
State, Tribal, and local wildlife management agencies, and their 
tenants, employees, or agents, to remove or destroy muscovy ducks 
(including hybrids of muscovy ducks), their nests, and eggs, anywhere 
outside their natural range, without a Federal migratory bird permit. 
Any muscovy duck removed live under this order must be: (1) placed with 
a facility where it will be maintained under conditions that will 
prevent its escape to the wild, (2) donated to public museums or public 
institutions for scientific or educational purposes, or (3) euthanized 
and disposed of by burying or incineration.
    In that March 1, 2010, final rule (75 FR 9316), we also amended the 
regulations at 50 CFR 21 to prohibit sale, transfer, or propagation of 
muscovy ducks for hunting and any other purpose other than for sale as 
food. This action required revision of regulations governing permit 
exceptions for captive-reared migratory waterfowl other than mallard 
ducks and governing waterfowl sale and disposal permits, as well as the 
addition of the control order described above. We also rewrote the 
affected regulations to make them easier to understand.
    After that final rule (75 FR 9316) was published, we were contacted 
by many individuals concerned about provisions in the rule that 
prohibit long-established muscovy duck activities, particularly keeping 
the ducks for exhibition, or as barnyard animals for personal 
consumption and egg production (rather than for sale as food). This 
document proposes changes to the regulations to address these concerns.

Specific Proposed Changes to 50 CFR 21.14

    In 50 CFR 21.14, we would remove the requirement that muscovy ducks 
may not be acquired, possessed, propagated, sold, or transferred, 
except for sale as food. We would add the following provisions to the 
regulations:
 You do not need a permit to acquire, possess, or sell 
properly-marked, captive-reared muscovy ducks or their eggs;
 You may not release muscovy ducks to the wild or to any 
location used by wild ducks; and
 You may not sell or distribute muscovy ducks as pets. Muscovy 
ducks have been sold as pets and given as prizes, activities we intend 
to disallow. However, we do not consider muscovy show ducks to be pets.
    When we published the proposed rule to change the regulations for 
muscovy ducks on August 22, 2008 (73 FR 49626), we were unaware that 
muscovy ducks are kept as barnyard animals, for consumption by their 
owners, and for egg production. We were not made aware of these issues 
until after our March 1, 2010, final rule was published (75 FR 9316). 
The changes we are proposing in this document would allow the continued 
keeping and production of muscovy ducks that were restricted by the 
March 1, 2010 final rule. We expect that these proposed regulations 
changes would have a very minimal impact on populations of wild ducks, 
and would facilitate

[[Page 60692]]

longstanding activities by muscovy duck owners.
    We also propose editorial changes to reorganize the material in 
this section of the regulations, and to use simpler words and more 
straight-forward sentences in order to clarify, and use consistent 
terminology in, the requirements.

Specific Proposed Changes to 50 CFR 21.25

    In 50 CFR 21.25, we would remove the specific restrictions for 
muscovy ducks, including:
 Disposing of muscovy ducks or eggs (see current Sec.  
21.25(b)(7));
 Limiting propagation of muscovy ducks only for sale as food 
(see current Sec.  21.25(b)(8));
 Releasing muscovy ducks to the wild or transferring them for 
release to the wild (see current Sec.  21.25(b)(8)(i)); and
 Selling or transferring muscovy ducks to be killed by shooting 
(see current Sec.  21.25(b)(8)(ii)).
    The proposed regulations at Sec.  21.14 address these issues; 
therefore, these topics do not need to be repeated in Sec.  21.25.
    We would add the following provision to the regulations at Sec.  
21.25:
 You do not need a permit to acquire, possess, sell, or dispose 
of properly marked, captive-reared muscovy ducks or their eggs.
    Like the changes we are proposing to Sec.  21.14, these proposed 
changes would allow the continued keeping and production of muscovy 
ducks that were restricted by the March 1, 2010, final rule (75 FR 
9316). We expect that these proposed regulations changes would have a 
very minimal impact on populations of wild ducks, and would facilitate 
longstanding activities by muscovy duck owners.
    In Sec.  21.25, we also propose to clarify the marking requirements 
for live or dead birds transferred or sold by referencing the 
requirements at Sec.  21.13(b). This should help affected persons more 
easily understand, and comply with, the regulations.
    We propose editorial changes that reorganize the material in this 
section of the regulations, and clarify regulatory requirements by 
using simpler words, more straight-forward sentences, and consistent 
terminology.

Specific Proposed Changes to 50 CFR 21.54

    We would revise paragraph (c) to better address disposal of muscovy 
ducks removed from the wild.

Public Comments

    We request comments or suggestions on this proposed rule from any 
interested parties. You may submit your comments and materials 
concerning this proposed rule by one of the methods listed in the 
ADDRESSES section. We will not consider comments sent by e-mail or fax 
or to an address not listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service (see FOR FURTHER INFORMATION CONTACT). You may obtain 
copies of our previous actions concerning this subject by mail (see FOR 
FURTHER INFORMATION CONTACT) or by visiting the Federal eRulemaking 
Portal at http://www.regulations.gov.

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 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.
    This rule addresses captive-reared muscovy ducks that, for the most 
part, were already held when the species was added to our List of 
Migratory Birds at 50 CFR 10.13. We expect no significant economic 
impacts to result from a regulations change allowing possession and 
sale of these ducks to continue. Further, there would be 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.

[[Page 60693]]

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. This rule addresses captive-reared muscovy ducks that, for 
the most part, were already held when the species was added to our List 
of Migratory Birds at 50 CFR 10.13. Therefore, no significant economic 
impacts are expected to result from a regulations change allowing 
possession and sale of these ducks to continue.

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 this proposed rule under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.). There are no new information collection 
requirements associated with this proposed rule. We are not requiring 
any new permits, reports, or recordkeeping in this proposed rule. The 
FWS form we reference in the Proposed Regulation Promulgation section, 
FWS Form 3-186, Notice of Waterfowl Sale or Transfer, is approved under 
OMB Control Number 1018-0022, which expires November 30, 2010. An 
agency may not collect or sponsor and a person is not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    We have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and part 516 of 
the U.S. Department of the Interior Manual (516 DM). The change we 
propose is to allow people and agencies to continue ongoing activities 
with muscovy ducks. We completed an Environmental Action Statement 
addressing these changes, in which we concluded that the proposed 
regulations change requires no additional assessment of potential 
environmental impacts.

Environmental Consequences of the Proposed Action

    This proposal would allow some activities with captive-reared 
muscovy ducks that the current regulations prohibit. Because release of 
muscovy ducks to the wild is currently prohibited, and would remain 
prohibited under this proposal, the environmental consequences of the 
proposed regulations changes are negligible. However, because these 
regulation changes will allow possession of muscovy ducks for uses that 
were previously prohibited, the number of muscovy ducks held in 
captivity will likely be higher, which may lead to an increase in the 
number of muscovy ducks escaping into the wild.
    Socioeconomic. This proposed rule would not have significant 
socioeconomic impacts.
    Migratory bird populations. This proposed rule would not affect 
wild migratory bird populations.
    Endangered and threatened species. The proposed rule would not 
affect endangered or threatened 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)).

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. This rule is not a 
significant regulatory action under E.O. 13211, 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 record keeping 
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-reared migratory waterfowl 
other than mallard ducks.

    (a) You may acquire live or dead, captive-reared, properly marked 
migratory waterfowl of all species, other than muscovy ducks (Cairina 
moschata) or their eggs, only from a holder of a valid waterfowl sale 
and disposal permit in the United States. You may possess and transport 
such waterfowl species and any progeny or eggs for your use without a 
permit. You also may lawfully acquire such waterfowl species outside of 
the United States with appropriate permits (see Sec.  21.21 of subpart 
C of this part). If you acquire captive-reared waterfowl or their eggs 
(other than muscovy ducks and their eggs) from a waterfowl sale and 
disposal permittee, you must retain the FWS

[[Page 60694]]

Form 3-186, Notice of Waterfowl Sale or Transfer, from the permittee 
for as long as you have the birds, eggs, or their progeny.
    (b) All progeny of captive-reared birds or from eggs of captive-
reared birds must be physically marked in accordance with Sec.  
21.13(b).
    (c) With the exception of muscovy ducks, you may transfer or 
dispose of captive-reared birds or their eggs, whether alive or dead, 
to any other person only if you have a valid 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. The 
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 is marked as 
provided in Sec.  21.13(b).
    (f) Muscovy ducks. You do not need a permit to acquire, possess, or 
sell properly-marked, captive-reared muscovy ducks (Cairina moschata) 
or their eggs. You may not release captive-reared muscovy ducks to the 
wild or to any location used by wild ducks. You may not sell muscovy 
ducks to be hunted or released to the wild, sell them or distribute 
them as pets, or transfer them to anyone to be hunted or released to 
the wild. Nothing in this section shall be construed to permit the 
taking of live muscovy ducks or their eggs from the wild.
    (g) 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. Amend Sec.  21.25 as follows:
    a. By redesignating paragraphs (a), (b), (c), (d), and (e) as 
paragraphs (b), (c), (d), (e), and (f);
    b. By adding a new paragraph (a) to read as set forth below; and
    c. By revising newly designated paragraphs (b) and (c) to read as 
set forth below.


Sec.  21.25  Waterfowl sale and disposal permits.

    (a) Prohibition on taking waterfowl from the wild. You may not take 
migratory waterfowl or their eggs from the wild, except as provided for 
elsewhere in this subchapter.
    (b) Permit requirement. You do not need a permit to acquire, 
possess, sell, or dispose of properly-marked, captive-reared mallard 
ducks (Anas platyrhynchos) or properly-marked, captive-reared muscovy 
ducks (Cairina moschata), or their eggs. You must have a waterfowl sale 
and disposal permit before you may lawfully sell, trade, donate, or 
otherwise dispose of other species of properly-marked, captive-reared 
migratory waterfowl or their eggs.
    (c) 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 acquire waterfowl, other than mallard ducks or muscovy 
ducks, or their eggs, only from a person who has a valid waterfowl sale 
and disposal permit.
    (2) You must physically mark all offspring hatched in captivity 
before they are 6 weeks of age in accordance with Sec.  21.13(b), 
unless you hold them at a public zoological park or a public scientific 
or educational institution.
    (3) Properly marked captive-reared 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 for the species (see part 20 of this subchapter).
    (4) 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.
    (5) You may transfer or sell live or dead birds marked by a method 
listed in Sec.  21.13(b), or their eggs, at any time or place.
    (6) If you transfer captive-reared birds or their eggs, other than 
mallard ducks or muscovy ducks 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 listed in Sec.  21.13(b) by which the birds are marked.
    (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.
* * * * *
    4. Revise Sec.  21.54(c) as follows:
    (c) Disposal of muscovy ducks. Any muscovy duck removed live under 
this order must be: Any muscovy duck removed live under this order must 
be: (1) placed with a facility where it will be maintained under 
conditions that will prevent its escape to the wild, (2) donated to 
public museums or public institutions for scientific or educational 
purposes, or (3) euthanized and disposed of by burying or incineration. 
Any muscovy duck taken lethally under this order may be donated to a 
public museum or public institution for scientific or educational 
purposes. If it is not donated to a public museum or public 
institution, it must be disposed of by burying or incineration. 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.

    Dated: August 31, 2010
Eileen Sobeck,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-23139 Filed 9-30-10; 8:45 am]
BILLING CODE 4310-55-S