Final List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply, 12710-12716 [05-5127]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 49 (Tuesday, March 15, 2005)]
[Notices]
[Pages 12710-12716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5127]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Final List of Bird Species to Which the Migratory Bird Treaty Act 
Does Not Apply

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.

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

SUMMARY: We are publishing a final list of the nonnative bird species 
that have been introduced by humans into the United States or its 
territories and to which the Migratory Bird Treaty Act (MBTA) does not 
apply. This action is required by the Migratory Bird Treaty Reform Act 
(MBTRA) of 2004. The MBTRA amends the MBTA by stating that it applies 
only to migratory bird species that are native to the United States or 
its territories, and that a native migratory bird is one that is 
present as a result of natural biological or ecological processes. This 
notice identifies those species that are not protected by the MBTA, 
even though they belong to biological families referred to in treaties 
that the MBTA implements, as their presence in the United States and 
its territories is solely the result of intentional or unintentional 
human-assisted introductions.

ADDRESSES: The complete file for this notice is available for 
inspection, by appointment (contact John L. Trapp, (703) 358-1714), 
during normal business hours at U.S. Fish and Wildlife Service, 4501 
North Fairfax Drive, Room 4107, Arlington, Virginia.

SUPPLEMENTARY INFORMATION:

What Is the Authority for This Notice?

    Migratory Bird Treaty Reform Act of 2004 (Division E, Title I, Sec. 
143 of the Consolidated Appropriations Act, 2005, Pub. L. 108-447).

What Is the Purpose of This Notice?

    The purpose of this notice is to make the public aware of the final 
list of ``all nonnative, human-introduced bird species to which the 
Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) does not apply,'' as 
required by the MBTRA of 2004.
    This notice is strictly informational. It merely lists some of the 
bird species to which the MBTA does not apply. The presence or absence 
of a species on this list has no legal effect. This list does not 
change the protections that any of these species might receive under 
such agreements as CITES--the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (T.I.A.S. 8249), the 
Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 275), or 
the Wild Bird Conservation Act of 1992 (16 U.S.C. 4901-4916, 106 Stat. 
2224). Regulations implementing the MBTA are found in parts 10, 20, and 
21 of 50 CFR. The list of migratory birds covered by the MBTA is 
located at 50 CFR 10.13.

What Was the Response of the Public to the Draft List?

    A notice announcing a draft list of the nonnative human-introduced 
bird species to which the MBTA does not apply was published on January 
4, 2005 (70 FR 372), with a request for public comments. The notice 
generated approximately 826 nonduplicated comments from the public. The 
draft list was supported by 21 State wildlife agencies (Arizona Game 
and Fish Department; Connecticut Bureau of Natural Resources; Delaware 
Division of Fish and Wildlife; Florida Fish and Wildlife Conservation 
Commission; Maryland Department of Natural Resources; Massachusetts 
Division of Fisheries and Wildlife; Michigan Department of Natural 
Resources; Montana Fish, Wildlife, and Parks; New Hampshire Fish and 
Game Department; New Jersey Division of Fish and Wildlife; New York 
State Division of Fish, Wildlife, and Marine Resources; North Carolina 
Wildlife Resources Commission; North Dakota Game and Fish Department; 
Oklahoma Department of Wildlife Conservation; Pennsylvania Game 
Commission; Rhode Island Division of Fish and Wildlife; South Dakota 
Department of Game, Fish, and Parks; Vermont Department of Fish and 
Wildlife; Virginia Department of Game and Inland Fisheries; Wisconsin 
Department of Natural Resources; and Wyoming Game and Fish Department), 
11 nonprofit organizations representing bird conservation and science 
interests (American Bird Conservancy--submitted on behalf of 10 
constituent organizations; Atlantic Flyway Council--representing 17 
States, 7 Provinces, Puerto Rico, and the U.S. Virgin Islands; 
California Partners in Flight; Environmental Studies at Airlie-Swan 
Research Program; Friends of Iroquois National Wildlife Refuge; 
National Audubon Society; National Wildlife Federation; Ornithological 
Council--representing 11 scientific societies of ornithology; Point 
Reyes Bird Observatory; Tennessee Ornithological Society; and The 
Nature Conservancy), 1 organization representing an extractive industry 
(National Mining Association), and 18 private citizens.
    Opposition to the draft list came from 4 animal-rights 
organizations (Ecology Center of Southern California, Friends of 
Animals, Friends of Montgomery Village Wildlife, and Humane Society of 
the United States), 2 law firms (representing the Humane Society of the 
United States and MBTA Advocates--the litigant in an outstanding 
lawsuit involving the mute swan), and some 770 private citizens. The 
vast majority of the latter comments are directly traceable to a 
posting made on January 13 to a free, weekly e-mail subscription 
service maintained jointly by the Fund for Animals and the Humane 
Society of the United States to notify their members of ``hot issues in 
animal protection'' and encourage them to write to public officials. 
Nearly all of these comments repeat the four ``talking points'' 
included in the alert and exhibit other similarities indicative of a 
common origin. The ``talking points'' are addressed in the Service's 
responses to Issues 1, 2, 3, and 10.
    Issue 1: One reviewer argued at length (and numerous others 
suggested) that the Service must prepare an Environmental Impact 
Statement (EIS) before publishing the final list of bird species to 
which the Migratory Bird Treaty Act does not apply.
    Service Response: In requiring (a) that the Secretary ``provide 
adequate time for public comment'' on a draft list and (b) that a final 
list be published ``not later

[[Page 12711]]

than 90 days after the date of enactment'' of the MBTRA (December 8, 
2004), Congress did not allow sufficient time for the Service to 
prepare an EIS. The preparation of an EIS would have been inconsistent 
with the Service's duty to comply with the statutory time period. 
Furthermore, NEPA does not apply, as this list, which has no legal 
effect, is not the result of agency decisionmaking; also, publication 
of the list is a ministerial duty based on factual determinations. To 
the extent that any change in the scope of the MBTA has occurred, that 
change occurred upon Public Law 108-447 going into effect.
    Issue 2: One reviewer argued at length (and many others agreed) 
that the draft list was inconsistent with the conventions with Canada, 
Mexico, Japan, and Russia because it excluded nonnative species from 
the protection of the MBTA. In particular, the reviewer asserted that 
Article I of the treaty with Mexico, which states that ``it is right 
and proper to protect birds denominated as migratory, whatever may be 
their origin,'' demonstrates that the treaty parties intended to 
protect nonnative species.
    Service Response: Congress explicitly stated its sense that the 
language of the MBTRA was ``consistent with the intent and language of 
the four bilateral treaties implemented by'' the MBTA.
    The list is clearly not inconsistent with the conventions with 
Japan or Russia, as (a) those conventions list in an Annex (Japan) or 
Appendix (Russia) the individual species that are covered, (b) all of 
the species listed in the Annex or Appendix are native to both 
signatory countries, and (c) none of the species on this list appears 
in the Annex or Appendix.
    In the case of the convention with Mexico, the language referred to 
by the reviewer must be read in the context of the entire sentence. The 
words ``whatever may be their origin'' are followed immediately by the 
words ``which in their movements live temporarily'' in the United 
States and Mexico. Therefore, the ``whatever may be their origin'' 
language is not inconsistent with the treaty applying only to species 
that are native to one or both countries. Although the treaty is 
admittedly silent on the issue, the families of migratory birds that 
the parties chose to protect strongly suggests that the intention was 
to protect only native migratory birds, as only families with species 
native to the United States and Mexico are included. None of the listed 
families are strictly nonnative to the United States or Mexico.
    While the convention with Canada does not specifically make a 
distinction between native and nonnative or exotic species, the Service 
has traditionally and consistently interpreted and enforced the 
convention and the MBTA as applying only to native species. This 
approach is consistent with the historical fact that all of the 
contemporaneous concerns leading to enactment of the Canadian 
convention in 1916 and the MBTA in 1918 focused exclusively on imminent 
threats to native species, including (a) devastation of native 
waterfowl, dove and pigeon, and shorebird populations by market 
hunters; (b) the slaughter of native herons and egrets to supply the 
millinery trade with their plumes or aigrettes, and (c) the adornment 
of women's hats with the feathers of native songbirds (Dorsey 1998: 
165-246). Moreover, like the treaty with Mexico, the list of bird 
groups covered by the treaty with Canada strongly suggests that the 
intent of the parties was to cover native species. Neither the families 
nor any of the other groupings or individual species mentioned are 
purely nonnative.
    In any case, Congress has acted, and the Service now has no 
authority to enforce the prohibition of section 703 of the MBTA with 
respect to nonnative species.
    Issue 3: One reviewer argued at length (and many others agreed) 
that, to avoid unintended consequences, the Service must go through the 
entire list and provide scientific justification for the inclusion of 
each individual species, conducting an exhaustive search of existing 
literature and consulting with ornithologists to ensure that no 
naturally occurring species have been included.
    Service Response: Congress required only that the Service publish a 
list of species that we deemed to be not protected by the MBTA by 
virtue of their nonnative human-introduced status. Congress did not 
require that we publish the actual data on which the list was based. 
Nevertheless, we did conduct a comprehensive internal review of the 
relevant ornithological literature in making our determinations. That 
data was available for inspection during the public comment period as 
part of the administrative record. In making our determinations, we 
relied most prominently on the American Ornithologists' Union's (AOU 
1998) Check-list of North American birds. The Check-list was 
supplemented, where necessary, by Phillips's (1928) Wild birds 
introduced or transplanted in North America, Long's (1981) Introduced 
birds of the world, Berger's (1981) Hawaiian birdlife, Stevenson and 
Anderson's (1994) The birdlife of Florida, and more than 200 other 
sources. The Ornithological Council concluded in their comments that 
``the list appears to be entirely consistent with the best available 
ornithological science.'' The National Audubon Society and the National 
Wildlife Federation offered their joint opinion that the list is 
``scientifically defensible,'' ``thoroughly researched,'' and ``in 
conformance with the decisions of the American Ornithologists' Union 
and other proper scientific authorities.'' The Tennessee Ornithological 
Society volunteered that, ``To the best of our knowledge, no species 
occur on the list that do not meet the criteria [and] * * * no species 
have been omitted.'' In the interest of full public disclosure, the 
Service has posted--at https://www.migratorybirds.fws.gov--a summary of 
the evidence that it evaluated in reaching its conclusion that all of 
the species included in the final list are nonnative to the United 
States and its territories and occur therein solely as a result of 
human-assisted introductions.
    Issue 4: Citing (a) fossil records, (b) historical illustrations, 
and (c) claims of natural occurrence in western North America, one 
reviewer claimed that ``Under the definitions contained within the 
MBTRA, the mute swan is indeed a native species and hence entitled to 
continuing coverage under the Migratory Bird Treaty Act.''
    Service Response: We disagree for the reasons set forth in the 
draft list (70 FR 372). To more specifically address this comment, we 
provide additional information and analysis below.
    (a) Fossil Records. The relevant scientific literature (A[llen] 
1893; Brodkorb 1958 1964; Howard 1936, 1964; Miller 1948; Parmalee 
1961; Shufeldt 1892, 1913a, 1913b; Wetmore 1933, 1935, 1943, 1956, 
1957, 1959) reveals that four species of swans are recognized in the 
prehistoric faunal record of the United States: Cygnus paloregonus 
(extinct), C. hibbardi (extinct), C. columbianus (tundra swan), and C. 
buccinator (trumpeter swan). Avian paleontologists who examined the 
remains of paloregonus recognized that its skeletal structure was more 
similar to that of a group of swans formerly lumped together in the 
subgenus Sthenelides, a group that includes C. olor (the mute swan), 
than it was to either the tundra or trumpeter swan. Although sometimes 
referring to it as ``mute-like'' in structure, authorities have always 
recognized paloregonus as totally distinct from the mute swan (Brodkorb 
1964; Howard

[[Page 12712]]

1964; Wetmore 1959), with no evidence of any evolutionary lineage from 
paloregonus to olor. Fossil remains of mute swans are known only from 
present-day Azerbaijan, England, Germany, Ireland, Italy, and Portugal 
(Howard 1964). In light of the above evidence, Wilmore's (1974:32) 
unsupported statements regarding the supposed presence of mute swans in 
North America prior to human settlement (i.e., ``From the discovery of 
swan fossils of the Pleistocene period it is believed the mute swan was 
indigenous to North America,'' and ``Further proof of the mute being a 
native of North America has been found'') are not scientifically 
credible.
    (b) Historical Illustrations. We continue to conclude that none of 
the birds depicted in Harriot (1590) can be confidently identified to a 
particular species of swan, and the illustrations certainly do not 
provide evidence of the presence of mute swans in Pamlico Sound, North 
Carolina, in the late 16th century. John White (1537-1593), the 
Governor of the Roanoke colony and the artist whose illustrations grace 
Harriot (1590), produced a set of 27 portraits of North American birds 
that now resides in the British Museum; while the trumpeter swan is one 
of the 25 species illustrated by John White, the mute swan is not 
(White 2002).
    A variety of paper products (such as blotters, calendars, calling 
cards, postcards, and trade cards) manufactured and sold in the United 
States in the late 19th and early 20th century often were adorned with 
fanciful illustrations of birds, and not infrequently the birds 
depicted were of European origin, including such species as mute swan, 
European robin, and European goldfinch. For this reason, commercial 
illustrations such as the Currier & Ives print purportedly depicting 
mute swans in the Chesapeake Bay in 1872 do not provide reliable 
evidence of the native occurrence of this species.
    It is unreasonable to suggest that a species as large and 
distinctive as the mute swan--if it was truly a part of the native 
North American avifauna--would not have been encountered by reputable 
wildlife artists such as Alexander Wilson or John James Audubon and 
depicted in their artwork, or collected by any of the early naturalists 
such as Spencer Fullerton Baird, Charles Lucien Bonaparte, William 
Brewster, Elliott Coues, Thomas Nuttall, and Robert Ridgway during 
expeditions of exploration across the length and breadth of the 
American frontier. The absence of mute swans in the works of Wilson and 
Audubon, together with the absence of verifiable 18th or 19th century 
specimen records, is sufficient evidence for us to conclude that the 
mute swan is not native to the United States or its territories.
    (c) Claims of natural occurrence in the western United States. 
Contrary to the reviewer's claim, the range map in Dement'ev and 
Gladkov (1952:303) does not depict a mute swan breeding population in 
extreme northwestern Alaska. In fact, there are no known natural 
occurrences of mute swans in Alaska (Ciaranca et al. 1992; Gabrielson 
and Lincoln 1959; Gibson 1997). Similarly, the suggestion of 
``migration'' between northeast Siberia and northwest Alaska, ``with 
[mute] swans coming down from Alaska and taking up residence in 
Washington, Oregon, and parts of Canada in between'' is speculation, 
unsupported by evidence (Ciaranca et al. 1992).
    All occurrences of the mute swan in British Columbia, Washington, 
Oregon, and California--including all known instances of breeding--can 
be confidently attributed to birds originating from human-assisted 
introductions or escapes (Campbell et al. 1990; Washington 
Ornithological Society 2004; Gilligan et al. 1994; Small 1994). The 
mute swans photographed on a lake in Del Monte, California, and 
published in the August 1904 issue of Country Life in America magazine 
undoubtedly represent an early introduction of domesticated or 
semidomesticated birds to the grounds of the luxurious Hotel Del Monte 
(opened in 1880) or the Old Del Monte golf course (opened in 1897), 
both located on the Monterey Peninsula. In short, there are no known 
natural occurrences of mute swans in any of these jurisdictions.
    Issue 5: Several reviewers complained that we had not ruled out the 
possibility of natural occurrence in the United States or its 
territories for one or more of the species included on the draft list, 
with the following 19 being specifically mentioned by one or more 
respondents: bar-headed goose, red-breasted goose, mute swan, white-
faced whistling duck, ruddy shelduck, common shelduck, white stork, 
king vulture, red-backed hawk, great black-hawk, southern lapwing, 
blue-headed quail-dove, black-throated mango, San Blas jay, great tit, 
greater Antillean bullfinch, Cuban bullfinch, Cuban grassquit, and 
European greenfinch.
    Service Response: We again reviewed the scientific sources that 
were used to make a determination that these species are not native to 
the United States or its territories. We conclude that there is 
insufficient evidence to show that any of these species have occurred 
anywhere in the United States or its territories unaided by human 
assistance. In particular, the absence of any substantiated record of 
natural occurrence in the United States or its territories in the AOU 
Check-list (1998, as amended) or other competent authorities 
constitutes substantial evidence that none of these species is native 
to the United States or its territories. This decision does not 
preclude the addition of any of these species to the list of migratory 
birds protected by the MBTA (50 CFR 10.13) at some future date should 
substantive evidence (such as a specimen, identifiable photograph, or 
sound recording) become available confirming its natural occurrence in 
the United States or its territories.
    Issue 6: Two reviewers questioned the omission of the muscovy duck 
and requested a clarification as to why this species is not on the 
list.
    Service Response: The muscovy duck (Cairina moschata) has been 
domesticated for hundreds of years, with feral birds now being broadly 
distributed across the globe. In the United States, domesticated and 
semidomesticated birds are found in farms, parks, private collections, 
and zoos, and feral populations have been established in south Texas, 
Florida, and possibly elsewhere. It is native to the neotropics, where 
it is ``Resident in the lowlands from Sinaloa and Tamaulipas [Mexico], 
south through most of Middle America (including Cozumel Island) and 
South America south, west of the Andes to western Ecuador and east of 
the Andes to northern Argentina and Uruguay'' (AOU 1998:64). Through 
natural expansion, it is now a ``Rare visitor on the Rio Grande in 
Texas (Hildalgo, Starr, and Zapata counties), where breeding was 
reported in 1994'' (ibid. 64-65). On that basis, we believe that it now 
qualifies for protection under the MBTA, and will be making a formal 
proposal to that effect in a forthcoming revision to the list of 
migratory birds (50 CFR 10.13) to be published in the Federal Register.
    Issue 7: The Service must continue to protect all migratory birds 
until it promulgates the final list of nonnative species.
    Service Response: The Service can only enforce the prohibitions of 
the MBTA as they exist. To the extent that those prohibitions ever 
applied to nonnative species, they no longer applied as of December 8, 
2004. As discussed above, the publication of this final list does not 
have any legal effect. Even if it did, this issue is now moot with 
publication of the final list.

[[Page 12713]]

    Issue 8: One reviewer noted that the MBTRA does little to resolve 
the problems caused by nonnative birds in the Hawaiian Islands, where 
at least seven species native to the continental United States have 
been intentionally introduced and established, with some of them now 
being detrimental to native wildlife.
    Service Response: The MBTA and the international migratory bird 
conventions do not allow the exemption of species on a geographic 
basis. If a species is native anywhere in the United States or its 
territories and belongs to a family covered by one or more of the four 
conventions, it is protected anywhere and everywhere that the MBTA 
applies. Federal regulations implementing the MBTA authorize mechanisms 
such as depredation permits or depredation orders that may be used to 
grant local authorities greater leeway in dealing with situations in 
which protected migratory birds are causing damage to agricultural 
crops, livestock, or wildlife, or when causing a health hazard or other 
nuisance.
    Issue 9: One reviewer argued that nothing in the MBTA or the MBTRA 
prevents the Service from affording the protection of the MBTA to 
species that belong to families not covered by any of the underlying 
migratory bird treaties, and suggested biologically-based criteria that 
would consider the population status of a species and its need for 
conservation action rather than the inclusion or exclusion of a family 
in one or more of the treaties.
    Service Response: We disagree. Neither the MBTA nor the MBTRA 
provide us the authority to grant MBTA protection to species that (a) 
don't belong to any of the 69 families covered by the Canadian, 
Mexican, or Russian conventions; or (b) aren't specifically listed in 
the Japanese or Russian conventions. The inclusion of species that 
belong to families not currently covered by any of the conventions 
(such as Psittacidae or Timaliidae, for example) would require an 
amendment to one of the conventions to expand the families to which it 
applies (this was done with respect to the treaty with Mexico in 1972), 
or an amendment to the MBTA applying its prohibitions to species not 
covered by any of the treaties.
    Issue 10: Many of the 770 private citizens opposed to the Service's 
determination that these species are not subject to the protection of 
the MBTA expressed the view that publication of the list ``will declare 
an open season on the killing of over a hundred species of birds, and 
mark the beginning of a mass slaughter campaign against mute swans.''
    Service Response: Of the 124 species included on the final list, 
only one, the mute swan, has ever been treated as Federally protected 
under the MBTA. See Hill v. Norton, 275 F. 3d 98 (D.C. Cir. 2001). By 
declaring that the MBTA does not apply to nonnative human-introduced 
species, the MBTRA merely restores the status quo that prevailed during 
the first 83 years of the MBTA. More than 100 species of nonnative 
migratory birds have been introduced into the United States or its 
territories since enactment of the MBTA in 1918. In the absence of 
Federal protection, 18 of those species successfully established self-
sustaining breeding populations. Today, 16 of these 18 species continue 
to maintain thriving breeding populations and several have expanded 
their ranges dramatically, all in the continued absence of Federal 
protection. In publishing this list, we do not ``declare on open 
season'' or promote the killing of any species; we merely list the 
species that are not Federally protected under the MBTA because they 
are nonnative and human-introduced.

What Determination Did the Service Make Regarding the Mute Swan?

    Because of the previous litigation regarding the mute swan, and 
because of the comments we received asserting that the mute swan is a 
native species, we have decided to treat the comments received from 
MBTA Advocates on the proposed list as a petition for rulemaking 
pursuant to the Administrative Procedure Act, 5 U.S.C. 553(e), to add 
the mute swan to the list of birds covered by the MBTA found at 50 CFR 
10.13. As noted above, the list of nonnative species in this notice is 
published for information purposes, and does not constitute a binding 
factual determination by the agency with respect to any of the species 
listed. In contrast, we have made, in response to the mute swan 
petition, a factual determination that the mute swan is not native to 
the United States or its territories. In a separate letter, we have 
informed MBTA Advocates that we have denied their petition. Members of 
the public may at any time provide the Service with information 
concerning whether (a) birds currently listed in 50 CFR 10.13 are not 
covered by the MBTA, or (b) birds not listed in 50 CFR 10.13 are 
covered by the MBTA, for any reason, including their status as native 
or nonnative species. The public may also petition for specific 
rulemaking changes. In any case, 50 CFR 10.13, subject to any 
amendments, constitutes the Service's binding interpretation of the 
species covered by the MBTA.

How Does the Final List Differ From the Draft List?

    Criteria. We revised the first sentence of criteria 3 by replacing 
``confidently attributed solely to'' with ``best (or most reasonably) 
explained by.'' As revised, this sentence now reads as follows: ``All 
of its [each species] known occurrences in the United States can be 
best (or most reasonably) explained by intentional or unintentional 
human-assisted introductions to the wild.'' This change reflects the 
reality that there is sometimes a certain amount of uncertainty about 
the origin or provenance of individuals of some species that appear in 
the United States. For example, while it may be possible that an 
individual of a species with no known history of natural occurrence in 
the United States represents a natural vagrant, the most plausible or 
reasonable explanation is often that the individual involved represents 
an intentional introduction or escape from captivity. This criteria is 
thus consistent with the requirement for substantial evidence of 
natural occurrence before adding a species to the list of species 
protected by the MBTA at 50 CFR 10.13.
    The List. After further review of the literature and the draft 
list, we removed 3 species and added 15.
    Lanner falcon (Falco biarmicus), saker falcon (F. cherrug), and 
barbary falcon (F. pelegrinoides) are removed because of a lack of 
substantial evidence that they meet the criteria for inclusion.
    Lanner and saker falcons are regularly imported into this country 
for use in recreational falconry or bird control at airports, and are 
believed to sometimes escape from their handlers, but we have found no 
literature documenting the presence of escapes in the United States.
    The barbary falcon is currently protected under the MBTA as a 
subspecies of the peregrine falcon (F. peregrinus), in accordance with 
the taxonomic treatment of the AOU (1998) Check-list. Like the lanner 
and saker, barbary falcons are regularly imported into this country for 
use in recreational falconry or bird control at airports, and are 
believed to sometimes escape from their handlers, but we have found no 
literature documenting the presence of escapes in the United States.
    The removal of these three species or subspecies from this list 
does not determine their qualification for protection under the MBTA.
    The following 14 species were overlooked in the notice of January 4 
but there is substantial evidence of nonnative human-introduced

[[Page 12714]]

occurrence in the United States or its territories, so we add them to 
the final list (the authorities upon which these determinations are 
based are noted parenthetically):
    Nettapus coromandelianus, Cotton Pygmy-goose (Pranty 2004).
    Pelecanus rufescens, Pink-backed Pelican (McKee and Erickson 2002; 
Pranty 2004).
    Anhinga melanogaster, Oriental Darter (McKee and Erickson 2002).
    Platalea leucorodia, Eurasian Spoonbill (Pranty 2004).
    Threskiornis aethiopicus, Sacred Ibis (Pranty 2004).
    Terathopius ecuadatus, Bateleur (Small 1994).
    Grus virgo, Demoiselle Crane (Bull 1974; Cole and McCaskie 2004).
    Vanellus spinosus, Spur-winged Lapwing (Bull 1974).
    Corvus albicollis, White-necked Raven (Pranty 2004).
    Corvus nasicus, Cuban Crow (Zeranski and Baptist 1990).
    Pyrrhocorax pyrrhocorax, Red-billed Chough (Zeranski and Baptist 
1990).
    Dendrocitta vagabunda, Rufous Treepie (Bull 1974).
    Saxicoloides fulicata, Indian Robin (Bull 1974).
    Turdus ruficollis, Dark-throated Thrush (Bull 1974).
    Cyanerpes cyaneus, Red-legged Honeycreeper (Pranty 2004).

What Criteria Did We Use To Identify Bird Species Not Protected by the 
MBTA?

    In accordance with the language of the MBTRA, the Service relied on 
substantial evidence in the scientific record in making a determination 
as to which species qualified as nonnative and human-introduced. Thus, 
each species in the final list meets the following four criteria:
    (1) It belongs to a family of birds covered by the MBTA by virtue 
of that family's inclusion in any of the migratory bird conventions 
with Canada, Mexico, Russia, or Japan. The Canadian and Mexican 
treaties list the families of birds that are protected. In the Russian 
treaty, the specific species covered are listed in an Appendix in which 
the species are arranged by family. Article VIII of the Russian treaty 
allows the parties to protect additional species that belong to the 
same family as a species listed in the Appendix. The treaty with Japan 
lists covered species in an Annex without reference to families, and 
contains no provision that would allow treaty parties to unilaterally 
add additional species.
    (2) There is credible documented evidence that it has occurred at 
least once in an unconfined state in the United States or its 
territories.
    (3) All of its known occurrences in the United States can be best 
(or most reasonably) explained by intentional or unintentional human-
assisted introductions to the wild. An intentional introduction is one 
that was purposeful--for example, the person(s) or institution(s) 
involved intended for it to happen. An unintentional introduction is 
one that was unforeseen or unintended--for example, the establishment 
of self-sustaining populations following repeated escapes from captive 
facilities. Self-sustaining populations are able to maintain their 
viability from one generation to the next through natural reproduction 
without the introduction of additional individuals.
    (4) There is no credible evidence of its natural occurrence in the 
United States unaided by direct or indirect human assistance. The 
native range and known migratory movements (if any) of the species 
combine to make such occurrence in the United States extremely 
unlikely, both historically and in the future. Migratory bird species 
with credible evidence of natural occurrence anywhere in the United 
States or its territories, even if introduced elsewhere within these 
jurisdictions, are listed in 50 CFR 10.13.

The Final List: What Are the Bird Species Not Protected by the MBTA?

    We made this list as comprehensive as possible by including all 
nonnative, human-assisted species that belong to any of the families 
referred to in the treaties and whose occurrence(s) in the United 
States and its territories have been documented in the scientific 
literature. It is not, however, an exhaustive list of all the nonnative 
species that could potentially appear in the United States or its 
territories as a result of human assistance. New species of nonnative 
birds are being reported annually in the United States, and it is 
impossible to predict which species might appear in the near future.
    The appearance of a species on this list does not preclude its 
addition to the list of migratory birds protected by the MBTA (50 CFR 
10.13) at some later date should substantial evidence come to light 
confirming natural occurrence in the United States or its territories.
    The 125 species on this list are arranged by family according to 
the American Ornithologists' Union (1998, as amended by Banks et al. 
2003). Within families, species are arranged alphabetically by 
scientific name. Common and scientific names follow Monroe and Sibley 
(1993). Where the names adopted by the American Ornithologists' Union 
differ from those of Monroe and Sibley, they are given in parentheses. 
Species with established, self-sustaining populations are denoted with 
an asterisk (*).

Family Anatidae

    Aix galericulata, Mandarin Duck
    Alopochen aegyptiacus, Egyptian Goose
    Anas hottentota, Hottentot Teal
    Anas luzonica, Philippine Duck
    Anser anser, Graylag Goose
    Anser anser `domesticus', Domestic Goose
    Anser cygnoides, Swan Goose
    Anser indicus, Bar-headed Goose
    Branta ruficollis, Red-breasted Goose
    Callonetta leucophrys, Ringed Teal
    Chenonetta jubata, Maned Duck
    Coscoroba coscoroba, Coscoroba Swan
    Cygnus atratus, Black Swan
    Cygnus melanocoryphus, Black-necked Swan
    Cygnus olor, Mute Swan*
    Dendrocygna viduata, White-faced Whistling-Duck
    Neochen jubata, Orinoco Goose
    Netta peposaca, Rosy-billed Pochard
    Netta rufina, Red-crested Pochard
    Nettapus coromandelianus, Cotton Pygmy-goose
    Tadorna ferruginea, Ruddy Shelduck
    Tadorna tadorna, Common Shelduck

Family Pelecanidae

    Pelecanus onocroatalis, Great White Pelican
    Pelecanus rufescens, Pink-backed Pelican

Family Phalacrocoracidae

    Phalacrocorax gaimardi, Red-legged Cormorant

Family Anhingidae

    Anhinga melanogaster, Oriental Darter

Family Threskiornithidae

    Platalea leucorodia, Eurasian Spoonbill
    Threskiornis aethiopicus, Sacred Ibis

Family Ciconiidae

    Ciconia abdimii, Abdim's Stork
    Ciconia ciconia, White Stork
    Ciconia episcopus, Woolly-necked Stork
    Ephippiorhynchus asiaticus, Black-necked Stork

Family Cathartidae

    Sarcoramphus papa, King Vulture

Family Phoenicopteridae

    Phoenicopterus chilensis, Chilean Flamingo
    Phoenicopterus minor, Lesser Flamingo

Family Accipitridae

    Buteo polyosoma, Red-backed Hawk
    Buteogallus urubitinga, Great Black-Hawk
    Gyps sp., Griffon-type Old World vulture
    Terathopius ecuadatus, Bateleur

Family Rallidae

    Aramides cajanea, Gray-necked Wood-Rail

Family Gruiidae

    Balearica pavonina, Black Crowned-Crane
    Balearica regulorum, Gray Crowned-Crane

[[Page 12715]]

    Grus antigone, Sarus Crane
    Grus virgo, Demoiselle Crane

Family Charadriidae

    Vanellus chilensis, Southern Lapwing
    Vanellus spinosus, Spur-winged Lapwing

Family Laridae

    Larus novaehollandiae, Silver Gull

Family Columbidae

    Caloenas nicobarica, Nicobar Pigeon
    Chalcophaps indica, Emerald Dove
    Columba livia, Rock Pigeon*
    Columba palumbus, Common Wood-Pigeon
    Gallicolumba luzonica, Luzon Bleeding-heart
    Geopelia cuneata, Diamond Dove
    Geopelia humeralis, Bar-shouldered Dove
    Geopelia striata, Zebra Dove*
    Geophaps lophotes, Crested Pigeon
    Geophaps plumifera, Spinifex Pigeon
    Geophaps smithii, Partridge Pigeon
    Leucosarcia melanoleuca, Wonga Pigeon
    Phaps chalcoptera, Common Bronzewing
    Starnoenas cyanocephala, Blue-headed Quail-Dove
    Streptopelia bitorquata, Island Collared-Dove*
    Streptopelia chinensis, Spotted Dove*
    Streptopelia decaocto, Eurasian Collared-Dove*
    Streptopelia risoria, Ringed Turtle-Dove*

Family Strigidae

    Pulsatrix perspicillata, Spectacled Owl

Family Trochilidae

    Anthracothorax nigricollis, Black-throated Mango

Family Corvidae

    Callocitta colliei, Black-throated Magpie-Jay
    Corvus albicollis, White-necked Raven
    Corvus corone, Carrion Crow
    Corvus nasicus, Cuban Crow
    Corvus splendens, House Crow
    Cyanocorax caeruleus, Azure Jay
    Cyanocorax sanblasianus, San Blas Jay
    Dendrocitta vagabunda, Rufous Treepie
    Garrulus glandarius, Eurasian Jay
    Pyrrhocorax pyrrhocorax, Red-billed Chough
    Urocissa erythrorhyncha, Blue Magpie (=Red-billed Blue-Magpie)

Family Alaudidae

    Alauda japonica, Japanese Skylark
    Lullula arborea, Wood Lark
    Melanocorypha calandra, Calandra Lark
    Melanocorypha mongolica, Mongolian Lark

Family Paridae

    Parus caeruleus, Blue Tit
    Parus major, Great Tit
    Parus varius, Varied Tit

Family Cinclidae

    Cinclus cinclus, White-throated (=Eurasian) Dipper

Family Sylviidae

    Cettia diphone, Japanese Bush-Warbler*
    Sylvia atricapilla, Blackcap

Family Turdidae

    Copsychus malbaricus, White-rumped Shama*
    Copsychus saularis, Oriental Magpie-Robin
    Erithacus rubecula, European Robin
    Luscinia akahige, Japanese Robin
    Luscinia komadori, Ryukyu Robin
    Luscinia megarhynchos, Common (=European) Nightingale
    Saxicoloides fulicata, Indian Robin
    Turdus philomelos, Song Thrush
    Turdus ruficollis, Dark-throated Thrush

Family Prunellidae

    Prunella modularis, Hedge Accentor (=Dunnock)

Family Thraupidae

    Piranga rubriceps, Red-hooded Tanager
    Thraupis episcopus, Blue-gray Tanager
    Cyanerpes cyaneus, Red-legged Honeycreeper

Family Emberizidae

    Emberiza citrinella, Yellowhammer
    Gubernatrix cristata, Yellow Cardinal
    Loxigilla violacea, Greater Antillean Bullfinch
    Melopyrrha nigra, Cuban Bullfinch
    Paroaria capitata, Yellow-billed Cardinal*
    Paroaria coronata, Red-crested Cardinal*
    Paroaria dominicana, Red-cowled Cardinal
    Paroaria gularis, Red-capped Cardinal
    Sicalis flaveola, Saffron Finch*
    Tiaris canora, Cuban Grassquit

Family Cardinalidae

    Passerina leclacherii, Orange-breasted Bunting

Family Icteridae

    Gymnostinops montezuma, Montezuma Oropendola
    Icterus icterus, Troupial*
    Icterus pectoralis, Spot-breasted Oriole*
    Leistes (=Sturnella) militaris, Red-breasted Blackbird (=Greater 
Red-breasted Meadowlark)

Family Fringillidae

    Carduelis cannabina, Eurasian Linnet
    Carduelis carduelis, European Goldfinch
    Carduelis chloris, European Greenfinch
    Carduelis cucullata, Red Siskin*
    Carduelis magellanica, Hooded Siskin
    Loxia pysopsittacus, Parrot Crossbill
    Serinus canaria, Island (=Common) Canary*
    Serinus leucopygius, White-rumped Seedeater
    Serinus mozambicus, Yellow-fronted Canary*

    The MBTA also does not apply to many other bird species, including 
(1) nonnative species that have not been introduced into the U.S. or 
its territories, and (2) species (native or nonnative) that belong to 
the families not referred to in any of the four treaties underlying the 
MBTA. The second category includes the Tinamidae (tinamous), Cracidae 
(chachalacas), Phasianidae (grouse, ptarmigan, and turkeys), 
Odontophoridae (New World quail), Burhinidae (thick-knees), Glareolidae 
(pratincoles), Pteroclididae (sandgrouse), Psittacidae (parrots), 
Todidae (todies), Dicruridae (drongos), Meliphagidae (honeyeaters), 
Monarchidae (monarchs), Pycnonotidae (bulbuls), Sylviinae (Old World 
warblers, except as listed in Russian treaty), Muscicapidae (Old World 
flycatchers, except as listed in Russian treaty), Timaliidae 
(wrentits), Zosteropidae (white-eyes), Sturnidae (starlings, except as 
listed in Japanese treaty), Coerebidae (bananaquits), Drepanidinae 
(Hawaiian honeycreepers), Passeridae (Old World sparrows, including 
house or English sparrow), Ploceidae (weavers), and Estrildidae 
(estrildid finches), as well as numerous other families not represented 
in the United States or its territories. A partial list of the 
nonnative human-introduced species included in category 2 is available 
at https://migratorybirds.fws.gov.

Author

John L. Trapp, U.S. Fish and Wildlife Service, Division of Migratory 
Bird Management, Mail Stop 4107, 4501 North Fairfax Drive, Arlington, 
VA 22203.

References Cited

A[llen], J.A. 1893. Shufeldt on fossil birds from Oregon. Auk 10:343-
345.
American Ornithologists' Union. 1998. Checklist of North American 
birds: the species of birds of North America from the Arctic through 
Panama, including the West Indies and Hawaiian Islands. 7th edition. 
Washington, DC. 829 pp.
Banks, R.C., C. Cicero, J.L. Dunn, A. W. Kratter, P.C. Rasmussen, J.V. 
Remsen Jr., J.D. Rising, and D.F. Stotz. 2003. Forty-fourth supplement 
to the American Ornithologists' Union Checklist of North American 
birds. Auk 120:923-931.
Berger, A.J. 1981. Hawaiian birdlife. 2nd edition. University of Hawaii 
Press, Honolulu.
Brodkorb, P. 1958. Fossil birds from Idaho. Wilson Bulletin 70:237-242.
Brodkorb, P. 1964. Catalogue of fossil birds. Part 2 (Anseriformes 
through Galliformes). Bulletin of the Florida State Museum Biological 
Sciences 8:195-335.
Bull, J. 1974. Birds of New York state. American Museum of Natural 
History, New York. 655 pp.
Campbell, R.W., N.K. Dawe, I. McTaggart-Cowan, J. M. Cooper, G. W. 
Kaiser, and M. C. E. McNall. 1990. The birds of British Columbia. 
Volume 1. Royal British

[[Page 12716]]

Columbia Museum, Victoria. 514 pp.
Ciaranca, M. A., C. C. Allin, and G. S. Jones. 1992. Mute Swan (Cygnus 
olor). Birds of North America 273 (A. Poole and F. Gill, eds.), 28 pp.
Cole, L. W., and G. McCaskie. 2004. Report of the California Bird 
Records Committee: 2002 records. Western Birds 35:2-31.
Dement'ev, G. P., and N. A. Gladkov (eds.). 1952. Birds of the Soviet 
Union. Volume IV. Translated from Russian in 1967 by Israel Program for 
Scientific Translations, Jerusalem. 683 pp.
Dorsey, K. 1998. The dawn of conservation diplomacy: U.S.-Canadian 
wildlife protection treaties in the Progressive Era. University of 
Washington Press, Seattle. 311 pp.
Gabrielson, I.N., and F.C. Lincoln. 1959. The birds of Alaska. 
Stackpole Books, Harrisburg, Pennsylvania. 922 pp.
Gibson, D.D. 1997. Inventory of the species and subspecies of Alaska 
birds. Western Birds 28:45-95.
Gilligan, J., D. Rogers, M. Smith, and A. Contreras. 1994. Birds of 
Oregon: status and distribution. Cinclus Publications, McMinnville, 
Oregon. 330 pp.
Harriot, T. 1590. A brief and true report of the new found land of 
Virginia. An unabridged 1972 republication of Theodor deBry's English-
language edition, with new Introduction by Paul Hulton. Dover 
Publications, New York. 91 pp.
Howard, H. 1936. Further studies upon the birds of the Pleistocene of 
Rancho La Brea. Condor 38:32-36.
Howard, H. 1964. Fossil Anseriformes. Pp. 233-326 in J. Delacour (ed.), 
The waterfowl of the world. Volume 4. Country Life Ltd, London. 364 pp.
Long, J.L. 1981. Introduced birds of the world: the worldwide history, 
distribution, and influence of birds introduced to new environments. 
Universe Books, New York. 528 pp.
McKee, T., and R.A. Erickson. 2002. Report of the California Bird 
Records Committee: 2000 records. Western Birds 33:175-201.
Miller, A. H. 1948. The whistling swan in the Upper Pliocene of Idaho. 
Condor 50:132.
Monroe, B.L., Jr., and C.G. Sibley. 1993. A world checklist of birds. 
Yale University Press, New Haven. 393 pp.
Parmalee, P.W. 1961. A prehistoric record of the trumpeter swan from 
central Pennsylvania. Condor 75:212-213.
Phillips, J.C. 1928. Wild birds introduced or transplanted in North 
America. United States Department of Agriculture Technical Bulletin 61, 
63 pp.
Pranty, B. 2004. Florida's exotic avifauna: a preliminary checklist. 
Birding 36:362-372.
Shufeldt, R.W. 1892. A study of the fossil avifauna of the Equus Beds 
of the Oregon desert. Journal of the Academy of Natural Sciences 
Philadelphia 11:389-425. (Not seen; cited by reference).
Shufeldt, R.W. 1913a. Contributions to avian paleontology. Auk 30:29-
39.
Shufeldt, R.W. 1913b. Review of the fossil fauna of the desert region 
of Oregon, with a description of additional material collected there. 
Bulletin of the American Museum of Natural History 32:123-178. (Not 
seen; cited by reference).
Small, A. 1994. California birds: their status and distribution. Ibis 
Publishing Company, Vista, California. 342 pp.
Stevenson, H.M., and B.H. Anderson. 1994. The birdlife of Florida. 
University Press of Florida, Gainesville.
Washington Ornithological Society. 2004. Checklist of Washington birds. 
Available at https://www.wos.org/WAList01.htm. Accessed February 22, 
2005.
Wetmore, A. 1933. Pliocene bird remains from Idaho. Smithsonian 
Miscellaneous Collections 87(20), 12 pp.
Wetmore, A. 1935. A record of the trumpeter swan from the Late 
Pleistocene of Illinois. Wilson Bulletin 47:237.
Wetmore, A. 1943. Remains of a swan from the Miocene of Arizona. Condor 
45:120.
Wetmore, A. 1956. A checklist of the fossil and prehistoric birds of 
North America and the West Indies. Smithsonian Miscellaneous 
Collections 131(5), 105 pp.
Wetmore, A. 1957. A fossil rail from the Pliocene of Arizona. Condor 
59:267-268.
Wetmore, A. 1959. Birds of the Pleistocene in North America. 
Smithsonian Miscellaneous Collections 138(4), 24 pp.
White, A.H. 2002. North American bird paintings by John White, Governor 
of Roanoke. Birding 34:130-134.
Wilmore, S.B. 1974. Swans of the world. Taplinger Publishing Company, 
New York. 229 pp.
Zeranski, J.D., and T.R. Baptist. 1990. Connecticut birds. University 
Press of New England, Hanover. 328 pp.

Other Sources

    A list of other sources used to compile this list is available upon 
request from any of the ADDRESSES listed above. It has also been posted 
online at https://migratorybirds.fws.gov.

    Dated: March 3, 2005.
Steve Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 05-5127 Filed 3-11-05; 11:37 am]
BILLING CODE 4310-55-P