Full Title Name:  Final List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply

NOTICES

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

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

Tuesday, March 15, 2005

AGENCY: Fish and Wildlife Service, Interior.

*12710 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 *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 http:// 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 *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.

*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 *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

*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 http://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 *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 http://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 http://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

70 FR 12710-01, 2005 WL 585081 (F.R.)