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.

 

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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 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

 

[[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 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

 

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[[Page 12716]]

 

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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]

 

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