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ADDRESSES: The complete file for this Commission; North Dakota Game and notice is available for inspection, by Fish Department; Oklahoma Department appointment (contact John L. Trapp, of Wildlife Conservation; Pennsylvania (703) 358–1714), during normal Game Commission; Rhode Island business hours at U.S. Fish and Wildlife Division of Fish and Wildlife; South Service, 4501 North Fairfax Drive, Room Dakota Department of Game, Fish, and 4107, Arlington, Virginia. Parks; Vermont Department of Fish and SUPPLEMENTARY INFORMATION: Wildlife; Virginia Department of Game and Inland Fisheries; Wisconsin What Is the Authority for This Notice? Department of Natural Resources; and Migratory Bird Treaty Reform Act of Wyoming Game and Fish Department), 2004 (Division E, Title I, Sec. 143 of the 11 nonprofit organizations representing Consolidated Appropriations Act, 2005, bird conservation and science interests Pub. L. 108–447). (American Bird Conservancy— submitted on behalf of 10 constituent What Is the Purpose of This Notice? organizations; Atlantic Flyway The purpose of this notice is to make Council—representing 17 States, 7 the public aware of the final list of ‘‘all Provinces, Puerto Rico, and the U.S. nonnative, human-introduced bird Virgin Islands; California Partners in species to which the Migratory Bird Flight; Environmental Studies at Airlie– Treaty Act (16 U.S.C. 703 et seq.) does Swan Research Program; Friends of not apply,’’ as required by the MBTRA Iroquois National Wildlife Refuge; of 2004. National Audubon Society; National This notice is strictly informational. It Wildlife Federation; Ornithological merely lists some of the bird species to Council—representing 11 scientific which the MBTA does not apply. The societies of ornithology; Point Reyes presence or absence of a species on this Bird Observatory; Tennessee list has no legal effect. This list does not Ornithological Society; and The Nature change the protections that any of these Conservancy), 1 organization species might receive under such representing an extractive industry agreements as CITES—the Convention (National Mining Association), and 18 on International Trade in Endangered private citizens. Species of Wild Fauna and Flora Opposition to the draft list came from (T.I.A.S. 8249), the Endangered Species 4 animal-rights organizations (Ecology DEPARTMENT OF THE INTERIOR Act of 1973 (16 U.S.C. 1531–1544, 87 Center of Southern California, Friends Stat. 275), or the Wild Bird of Animals, Friends of Montgomery Fish and Wildlife Service Conservation Act of 1992 (16 U.S.C. Village Wildlife, and Humane Society of 4901–4916, 106 Stat. 2224). Regulations the United States), 2 law firms Final List of Bird Species to Which the implementing the MBTA are found in (representing the Humane Society of the Migratory Bird Treaty Act Does Not parts 10, 20, and 21 of 50 CFR. The list United States and MBTA Advocates— Apply of migratory birds covered by the MBTA the litigant in an outstanding lawsuit is located at 50 CFR 10.13. involving the mute swan), and some 770 AGENCY: Fish and Wildlife Service, private citizens. The vast majority of the Interior. What Was the Response of the Public to the Draft List? latter comments are directly traceable to ACTION: Notice of availability. a posting made on January 13 to a free, A notice announcing a draft list of the weekly e-mail subscription service SUMMARY: We are publishing a final list nonnative human-introduced bird maintained jointly by the Fund for of the nonnative bird species that have species to which the MBTA does not Animals and the Humane Society of the been introduced by humans into the apply was published on January 4, 2005 United States to notify their members of United States or its territories and to (70 FR 372), with a request for public ‘‘hot issues in animal protection’’ and which the Migratory Bird Treaty Act comments. The notice generated encourage them to write to public (MBTA) does not apply. This action is approximately 826 nonduplicated officials. Nearly all of these comments required by the Migratory Bird Treaty comments from the public. The draft list repeat the four ‘‘talking points’’ Reform Act (MBTRA) of 2004. The was supported by 21 State wildlife included in the alert and exhibit other MBTRA amends the MBTA by stating agencies (Arizona Game and Fish similarities indicative of a common that it applies only to migratory bird Department; Connecticut Bureau of origin. The ‘‘talking points’’ are species that are native to the United Natural Resources; Delaware Division of addressed in the Service’s responses to States or its territories, and that a native Fish and Wildlife; Florida Fish and Issues 1, 2, 3, and 10. migratory bird is one that is present as Wildlife Conservation Commission; Issue 1: One reviewer argued at length a result of natural biological or Maryland Department of Natural (and numerous others suggested) that ecological processes. This notice Resources; Massachusetts Division of the Service must prepare an identifies those species that are not Fisheries and Wildlife; Michigan Environmental Impact Statement (EIS) protected by the MBTA, even though Department of Natural Resources; before publishing the final list of bird they belong to biological families Montana Fish, Wildlife, and Parks; New species to which the Migratory Bird referred to in treaties that the MBTA Hampshire Fish and Game Department; Treaty Act does not apply. implements, as their presence in the New Jersey Division of Fish and Service Response: In requiring (a) that United States and its territories is solely Wildlife; New York State Division of the Secretary ‘‘provide adequate time for the result of intentional or unintentional Fish, Wildlife, and Marine Resources; public comment’’ on a draft list and (b) human-assisted introductions. North Carolina Wildlife Resources that a final list be published ‘‘not later

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

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

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Issue 8: One reviewer noted that the slaughter campaign against mute the Service’s binding interpretation of MBTRA does little to resolve the swans.’’ the species covered by the MBTA. problems caused by nonnative birds in Service Response: Of the 124 species How Does the Final List Differ From the the Hawaiian Islands, where at least included on the final list, only one, the Draft List? seven species native to the continental mute swan, has ever been treated as United States have been intentionally Federally protected under the MBTA. Criteria. We revised the first sentence introduced and established, with some See Hill v. Norton, 275 F. 3d 98 (D.C. of criteria 3 by replacing ‘‘confidently of them now being detrimental to native Cir. 2001). By declaring that the MBTA attributed solely to’’ with ‘‘best (or most wildlife. does not apply to nonnative human- reasonably) explained by.’’ As revised, Service Response: The MBTA and the introduced species, the MBTRA merely this sentence now reads as follows: ‘‘All international migratory bird restores the status quo that prevailed of its [each species] known occurrences conventions do not allow the exemption during the first 83 years of the MBTA. in the United States can be best (or most of species on a geographic basis. If a More than 100 species of nonnative reasonably) explained by intentional or species is native anywhere in the United migratory birds have been introduced unintentional human-assisted States or its territories and belongs to a into the United States or its territories introductions to the wild.’’ This change family covered by one or more of the since enactment of the MBTA in 1918. reflects the reality that there is four conventions, it is protected In the absence of Federal protection, 18 sometimes a certain amount of anywhere and everywhere that the of those species successfully established uncertainty about the origin or MBTA applies. Federal regulations self-sustaining breeding populations. provenance of individuals of some implementing the MBTA authorize Today, 16 of these 18 species continue species that appear in the United States. mechanisms such as depredation to maintain thriving breeding For example, while it may be possible permits or depredation orders that may populations and several have expanded that an individual of a species with no be used to grant local authorities greater their ranges dramatically, all in the known history of natural occurrence in leeway in dealing with situations in continued absence of Federal the United States represents a natural which protected migratory birds are protection. In publishing this list, we do vagrant, the most plausible or causing damage to agricultural crops, not ‘‘declare on open season’’ or reasonable explanation is often that the livestock, or wildlife, or when causing promote the killing of any species; we individual involved represents an a health hazard or other nuisance. merely list the species that are not intentional introduction or escape from Federally protected under the MBTA Issue 9: One reviewer argued that captivity. This criteria is thus consistent because they are nonnative and human- nothing in the MBTA or the MBTRA with the requirement for substantial introduced. prevents the Service from affording the evidence of natural occurrence before protection of the MBTA to species that What Determination Did the Service adding a species to the list of species belong to families not covered by any of Make Regarding the Mute Swan? protected by the MBTA at 50 CFR 10.13. The List. After further review of the the underlying migratory bird treaties, Because of the previous litigation literature and the draft list, we removed and suggested biologically-based criteria regarding the mute swan, and because of 3 species and added 15. that would consider the population the comments we received asserting that Lanner falcon (Falco biarmicus), saker status of a species and its need for the mute swan is a native species, we falcon (F. cherrug), and barbary falcon conservation action rather than the have decided to treat the comments (F. pelegrinoides) are removed because inclusion or exclusion of a family in one received from MBTA Advocates on the of a lack of substantial evidence that or more of the treaties. proposed list as a petition for they meet the criteria for inclusion. Service Response: We disagree. rulemaking pursuant to the Lanner and saker falcons are regularly Neither the MBTA nor the MBTRA Administrative Procedure Act, 5 U.S.C. imported into this country for use in provide us the authority to grant MBTA 553(e), to add the mute swan to the list recreational falconry or bird control at protection to species that (a) don’t of birds covered by the MBTA found at airports, and are believed to sometimes belong to any of the 69 families covered 50 CFR 10.13. As noted above, the list escape from their handlers, but we have by the Canadian, Mexican, or Russian of nonnative species in this notice is found no literature documenting the conventions; or (b) aren’t specifically published for information purposes, and presence of escapes in the United States. listed in the Japanese or Russian does not constitute a binding factual The barbary falcon is currently conventions. The inclusion of species determination by the agency with protected under the MBTA as a that belong to families not currently respect to any of the species listed. In subspecies of the peregrine falcon (F. covered by any of the conventions (such contrast, we have made, in response to peregrinus), in accordance with the as Psittacidae or Timaliidae, for the mute swan petition, a factual taxonomic treatment of the AOU (1998) example) would require an amendment determination that the mute swan is not Check-list. Like the lanner and saker, to one of the conventions to expand the native to the United States or its barbary falcons are regularly imported families to which it applies (this was territories. In a separate letter, we have into this country for use in recreational done with respect to the treaty with informed MBTA Advocates that we falconry or bird control at airports, and Mexico in 1972), or an amendment to have denied their petition. Members of are believed to sometimes escape from the MBTA applying its prohibitions to the public may at any time provide the their handlers, but we have found no species not covered by any of the Service with information concerning literature documenting the presence of treaties. whether (a) birds currently listed in 50 escapes in the United States. Issue 10: Many of the 770 private CFR 10.13 are not covered by the The removal of these three species or citizens opposed to the Service’s MBTA, or (b) birds not listed in 50 CFR subspecies from this list does not determination that these species are not 10.13 are covered by the MBTA, for any determine their qualification for subject to the protection of the MBTA reason, including their status as native protection under the MBTA. expressed the view that publication of or nonnative species. The public may The following 14 species were the list ‘‘will declare an open season on also petition for specific rulemaking overlooked in the notice of January 4 the killing of over a hundred species of changes. In any case, 50 CFR 10.13, but there is substantial evidence of birds, and mark the beginning of a mass subject to any amendments, constitutes nonnative human-introduced

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occurrence in the United States or its once in an unconfined state in the names adopted by the American territories, so we add them to the final United States or its territories. Ornithologists’ Union differ from those list (the authorities upon which these (3) All of its known occurrences in the of Monroe and Sibley, they are given in determinations are based are noted United States can be best (or most parentheses. Species with established, parenthetically): reasonably) explained by intentional or self-sustaining populations are denoted Nettapus coromandelianus, Cotton unintentional human-assisted with an asterisk (*). Pygmy-goose (Pranty 2004). introductions to the wild. An Family Anatidae Pelecanus rufescens, Pink-backed intentional introduction is one that was Pelican (McKee and Erickson 2002; purposeful—for example, the person(s) Aix galericulata, Mandarin Duck Pranty 2004). or institution(s) involved intended for it Alopochen aegyptiacus, Egyptian Goose Anas hottentota, Hottentot Teal Anhinga melanogaster, Oriental to happen. An unintentional Anas luzonica, Philippine Duck Darter (McKee and Erickson 2002). introduction is one that was unforeseen Anser anser, Graylag Goose Platalea leucorodia, Eurasian or unintended—for example, the Anser anser ‘domesticus’, Domestic Goose Spoonbill (Pranty 2004). establishment of self-sustaining Anser cygnoides, Swan Goose Threskiornis aethiopicus, Sacred Ibis populations following repeated escapes Anser indicus, Bar-headed Goose (Pranty 2004). from captive facilities. Self-sustaining Branta ruficollis, Red-breasted Goose Terathopius ecuadatus, Bateleur populations are able to maintain their Callonetta leucophrys, Ringed Teal (Small 1994). viability from one generation to the next Chenonetta jubata, Maned Duck Grus virgo, Demoiselle Crane (Bull through natural reproduction without Coscoroba coscoroba, Coscoroba Swan 1974; Cole and McCaskie 2004). Cygnus atratus, Black Swan the introduction of additional Cygnus melanocoryphus, Black-necked Vanellus spinosus, Spur-winged individuals. Swan Lapwing (Bull 1974). (4) There is no credible evidence of its Cygnus olor, Mute Swan* Corvus albicollis, White-necked natural occurrence in the United States Dendrocygna viduata, White-faced Raven (Pranty 2004). unaided by direct or indirect human Whistling-Duck Corvus nasicus, Cuban Crow assistance. The native range and known Neochen jubata, Orinoco Goose (Zeranski and Baptist 1990). migratory movements (if any) of the Netta peposaca, Rosy-billed Pochard Pyrrhocorax pyrrhocorax, Red-billed species combine to make such Netta rufina, Red-crested Pochard Chough (Zeranski and Baptist 1990). occurrence in the United States Nettapus coromandelianus, Cotton Pygmy- Dendrocitta vagabunda, Rufous extremely unlikely, both historically goose Tadorna ferruginea, Ruddy Shelduck Treepie (Bull 1974). and in the future. Migratory bird species Tadorna tadorna, Common Shelduck Saxicoloides fulicata, Indian Robin with credible evidence of natural (Bull 1974). occurrence anywhere in the United Family Pelecanidae Turdus ruficollis, Dark-throated States or its territories, even if Pelecanus onocroatalis, Great White Thrush (Bull 1974). introduced elsewhere within these Pelican Cyanerpes cyaneus, Red-legged jurisdictions, are listed in 50 CFR 10.13. Pelecanus rufescens, Pink-backed Pelican Honeycreeper (Pranty 2004). The Final List: What Are the Bird Family Phalacrocoracidae What Criteria Did We Use To Identify Species Not Protected by the MBTA? Phalacrocorax gaimardi, Red-legged Bird Species Not Protected by the Cormorant We made this list as comprehensive MBTA? as possible by including all nonnative, Family Anhingidae In accordance with the language of human-assisted species that belong to Anhinga melanogaster, Oriental Darter the MBTRA, the Service relied on any of the families referred to in the Family Threskiornithidae substantial evidence in the scientific treaties and whose occurrence(s) in the record in making a determination as to United States and its territories have Platalea leucorodia, Eurasian Spoonbill Threskiornis aethiopicus, Sacred Ibis which species qualified as nonnative been documented in the scientific and human-introduced. Thus, each literature. It is not, however, an Family Ciconiidae species in the final list meets the exhaustive list of all the nonnative Ciconia abdimii, Abdim’s Stork following four criteria: species that could potentially appear in Ciconia ciconia, White Stork (1) It belongs to a family of birds the United States or its territories as a Ciconia episcopus, Woolly-necked Stork covered by the MBTA by virtue of that result of human assistance. New species Ephippiorhynchus asiaticus, Black-necked family’s inclusion in any of the of nonnative birds are being reported Stork migratory bird conventions with annually in the United States, and it is Family Cathartidae Canada, Mexico, Russia, or Japan. The impossible to predict which species Sarcoramphus papa, King Vulture Canadian and Mexican treaties list the might appear in the near future. families of birds that are protected. In The appearance of a species on this Family Phoenicopteridae the Russian treaty, the specific species list does not preclude its addition to the Phoenicopterus chilensis, Chilean covered are listed in an Appendix in list of migratory birds protected by the Flamingo which the species are arranged by MBTA (50 CFR 10.13) at some later date Phoenicopterus minor, Lesser Flamingo family. Article VIII of the Russian treaty should substantial evidence come to Family Accipitridae allows the parties to protect additional light confirming natural occurrence in Buteo polyosoma, Red-backed Hawk species that belong to the same family the United States or its territories. Buteogallus urubitinga, Great Black-Hawk as a species listed in the Appendix. The The 125 species on this list are Gyps sp., Griffon-type Old World vulture treaty with Japan lists covered species arranged by family according to the Terathopius ecuadatus, Bateleur in an Annex without reference to American Ornithologists’ Union (1998, Family Rallidae families, and contains no provision that as amended by Banks et al. 2003). Aramides cajanea, Gray-necked Wood-Rail would allow treaty parties to Within families, species are arranged unilaterally add additional species. alphabetically by scientific name. Family Gruiidae (2) There is credible documented Common and scientific names follow Balearica pavonina, Black Crowned-Crane evidence that it has occurred at least Monroe and Sibley (1993). Where the Balearica regulorum, Gray Crowned-Crane

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Grus antigone, Sarus Crane Family Turdidae Glareolidae (pratincoles), Pteroclididae Grus virgo, Demoiselle Crane Copsychus malbaricus, White-rumped (sandgrouse), Psittacidae (parrots), Family Charadriidae Shama* Todidae (todies), Dicruridae (drongos), Copsychus saularis, Oriental Magpie-Robin Meliphagidae (honeyeaters), Vanellus chilensis, Southern Lapwing Erithacus rubecula, European Robin Vanellus spinosus, Spur-winged Lapwing Monarchidae (monarchs), Pycnonotidae Luscinia akahige, Japanese Robin (bulbuls), Sylviinae (Old World Family Laridae Luscinia komadori, Ryukyu Robin Luscinia megarhynchos, Common warblers, except as listed in Russian Larus novaehollandiae, Silver Gull (=European) Nightingale treaty), Muscicapidae (Old World Family Columbidae Saxicoloides fulicata, Indian Robin flycatchers, except as listed in Russian Caloenas nicobarica, Nicobar Pigeon Turdus philomelos, Song Thrush treaty), Timaliidae (wrentits), Chalcophaps indica, Emerald Dove Turdus ruficollis, Dark-throated Thrush Zosteropidae (white-eyes), Sturnidae Columba livia, Rock Pigeon* Family Prunellidae (starlings, except as listed in Japanese treaty), Coerebidae (bananaquits), Columba palumbus, Common Wood- Prunella modularis, Hedge Accentor Pigeon (=Dunnock) Drepanidinae (Hawaiian Gallicolumba luzonica, Luzon Bleeding- honeycreepers), Passeridae (Old World heart Family Thraupidae sparrows, including house or English Geopelia cuneata, Diamond Dove Piranga rubriceps, Red-hooded Tanager sparrow), Ploceidae (weavers), and Geopelia humeralis, Bar-shouldered Dove Thraupis episcopus, Blue-gray Tanager Estrildidae (estrildid finches), as well as Geopelia striata, Zebra Dove* Cyanerpes cyaneus, Red-legged numerous other families not represented Geophaps lophotes, Crested Pigeon Honeycreeper Geophaps plumifera, Spinifex Pigeon in the United States or its territories. A Geophaps smithii, Partridge Pigeon Family Emberizidae partial list of the nonnative human- Leucosarcia melanoleuca, Wonga Pigeon Emberiza citrinella, Yellowhammer introduced species included in category Phaps chalcoptera, Common Bronzewing Gubernatrix cristata, Yellow Cardinal 2 is available at http:// Starnoenas cyanocephala, Blue-headed Loxigilla violacea, Greater Antillean migratorybirds.fws.gov. Quail-Dove Bullfinch Streptopelia bitorquata, Island Collared- Melopyrrha nigra, Cuban Bullfinch Author Dove* Paroaria capitata, Yellow-billed Cardinal* John L. Trapp, U.S. Fish and Wildlife Streptopelia chinensis, Spotted Dove* Paroaria coronata, Red-crested Cardinal* Service, Division of Migratory Bird Streptopelia decaocto, Eurasian Collared- Paroaria dominicana, Red-cowled Cardinal Management, Mail Stop 4107, 4501 Dove* Paroaria gularis, Red-capped Cardinal Streptopelia risoria, Ringed Turtle-Dove* Sicalis flaveola, Saffron Finch* North Fairfax Drive, Arlington, VA Tiaris canora, Cuban Grassquit 22203. Family Strigidae References Cited Pulsatrix perspicillata, Spectacled Owl Family Cardinalidae Passerina leclacherii, Orange-breasted A[llen], J.A. 1893. Shufeldt on fossil Family Trochilidae Bunting birds from Oregon. Auk 10:343– Anthracothorax nigricollis, Black-throated Family Icteridae 345. Mango American Ornithologists’ Union. 1998. Gymnostinops montezuma, Montezuma Checklist of North American birds: Family Corvidae Oropendola Callocitta colliei, Black-throated Magpie- Icterus icterus, Troupial* the species of birds of North Jay Icterus pectoralis, Spot-breasted Oriole* America from the Arctic through Corvus albicollis, White-necked Raven Leistes (=Sturnella) militaris, Red-breasted Panama, including the West Indies Corvus corone, Carrion Crow Blackbird (=Greater Red-breasted and Hawaiian Islands. 7th edition. Corvus nasicus, Cuban Crow Meadowlark) Washington, DC. 829 pp. Corvus splendens, House Crow Family Fringillidae Banks, R.C., C. Cicero, J.L. Dunn, A. W. Cyanocorax caeruleus, Azure Jay Kratter, P.C. Rasmussen, J.V. Cyanocorax sanblasianus, San Blas Jay Carduelis cannabina, Eurasian Linnet Remsen Jr., J.D. Rising, and D.F. Carduelis carduelis, European Goldfinch Dendrocitta vagabunda, Rufous Treepie Stotz. 2003. Forty-fourth Garrulus glandarius, Eurasian Jay Carduelis chloris, European Greenfinch Pyrrhocorax pyrrhocorax, Red-billed Carduelis cucullata, Red Siskin* supplement to the American Chough Carduelis magellanica, Hooded Siskin Ornithologists’ Union Checklist of Urocissa erythrorhyncha, Blue Magpie Loxia pysopsittacus, Parrot Crossbill North American birds. Auk (=Red-billed Blue-Magpie) Serinus canaria, Island (=Common) 120:923–931. Canary* Berger, A.J. 1981. Hawaiian birdlife. 2nd Family Alaudidae Serinus leucopygius, White-rumped edition. University of Hawaii Press, Alauda japonica, Japanese Skylark Seedeater Honolulu. Lullula arborea, Wood Lark Serinus mozambicus, Yellow-fronted Brodkorb, P. 1958. Fossil birds from Canary* Melanocorypha calandra, Calandra Lark Idaho. Wilson Bulletin 70:237–242. Melanocorypha mongolica, Mongolian The MBTA also does not apply to Brodkorb, P. 1964. Catalogue of fossil Lark many other bird species, including (1) birds. Part 2 (Anseriformes through Family Paridae nonnative species that have not been Galliformes). Bulletin of the Florida Parus caeruleus, Blue Tit introduced into the U.S. or its State Museum Biological Sciences Parus major, Great Tit territories, and (2) species (native or 8:195–335. Parus varius, Varied Tit nonnative) that belong to the families Bull, J. 1974. Birds of New York state. Family Cinclidae not referred to in any of the four treaties American Museum of Natural underlying the MBTA. The second History, New York. 655 pp. Cinclus cinclus, White-throated category includes the Tinamidae Campbell, R.W., N.K. Dawe, I. (=Eurasian) Dipper (tinamous), Cracidae (chachalacas), McTaggart-Cowan, J. M. Cooper, G. Family Sylviidae Phasianidae (grouse, ptarmigan, and W. Kaiser, and M. C. E. McNall. Cettia diphone, Japanese Bush-Warbler* turkeys), Odontophoridae (New World 1990. The birds of British Sylvia atricapilla, Blackcap quail), Burhinidae (thick-knees), Columbia. Volume 1. Royal British

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Columbia Museum, Victoria. 514 Phillips, J.C. 1928. Wild birds Other Sources pp. introduced or transplanted in North A list of other sources used to compile Ciaranca, M. A., C. C. Allin, and G. S. America. United States Department this list is available upon request from Jones. 1992. Mute Swan (Cygnus of Agriculture Technical Bulletin any of the ADDRESSES listed above. It has olor). Birds of North America 273 61, 63 pp. also been posted online at http:// (A. Poole and F. Gill, eds.), 28 pp. Pranty, B. 2004. Florida’s exotic migratorybirds.fws.gov. Cole, L. W., and G. McCaskie. 2004. avifauna: a preliminary checklist. Report of the California Bird Birding 36:362–372. Dated: March 3, 2005. Records Committee: 2002 records. Shufeldt, R.W. 1892. A study of the Steve Williams, Western Birds 35:2–31. fossil avifauna of the Equus Beds of Director, U.S. Fish and Wildlife Service. Dement’ev, G. P., and N. A. Gladkov the Oregon desert. Journal of the [FR Doc. 05–5127 Filed 3–11–05; 11:37 am] (eds.). 1952. Birds of the Soviet Academy of Natural Sciences BILLING CODE 4310–55–P Union. Volume IV. Translated from Philadelphia 11:389–425. (Not seen; Russian in 1967 by Israel Program cited by reference). for Scientific Translations, Shufeldt, R.W. 1913a. Contributions to Jerusalem. 683 pp. avian paleontology. Auk 30:29–39. Dorsey, K. 1998. The dawn of Shufeldt, R.W. 1913b. Review of the conservation diplomacy: U.S.- fossil fauna of the desert region of Canadian wildlife protection Oregon, with a description of treaties in the Progressive Era. additional material collected there. University of Washington Press, Bulletin of the American Museum Seattle. 311 pp. of Natural History 32:123–178. (Not Gabrielson, I.N., and F.C. Lincoln. 1959. seen; cited by reference). The birds of Alaska. Stackpole Small, A. 1994. California birds: their Books, Harrisburg, Pennsylvania. status and distribution. Ibis 922 pp. Publishing Company, Vista, Gibson, D.D. 1997. Inventory of the California. 342 pp. species and subspecies of Alaska Stevenson, H.M., and B.H. Anderson. birds. Western Birds 28:45–95. 1994. The birdlife of Florida. Gilligan, J., D. Rogers, M. Smith, and A. University Press of Florida, Contreras. 1994. Birds of Oregon: Gainesville. status and distribution. Cinclus Washington Ornithological Society. Publications, McMinnville, Oregon. 2004. Checklist of Washington 330 pp. Harriot, T. 1590. A brief and true report birds. Available at http:// of the new found land of Virginia. www.wos.org/WAList01.htm. An unabridged 1972 republication Accessed February 22, 2005. of Theodor deBry’s English- Wetmore, A. 1933. Pliocene bird language edition, with new remains from Idaho. Smithsonian Introduction by Paul Hulton. Dover Miscellaneous Collections 87(20), Publications, New York. 91 pp. 12 pp. Howard, H. 1936. Further studies upon Wetmore, A. 1935. A record of the the birds of the Pleistocene of trumpeter swan from the Late Rancho La Brea. Condor 38:32–36. Pleistocene of Illinois. Wilson Howard, H. 1964. Fossil Anseriformes. Bulletin 47:237. Pp. 233–326 in J. Delacour (ed.), Wetmore, A. 1943. Remains of a swan The waterfowl of the world. from the Miocene of Arizona. Volume 4. Country Life Ltd, Condor 45:120. London. 364 pp. Wetmore, A. 1956. A checklist of the Long, J.L. 1981. Introduced birds of the fossil and prehistoric birds of North world: the worldwide history, America and the West Indies. distribution, and influence of birds Smithsonian Miscellaneous introduced to new environments. Collections 131(5), 105 pp. Universe Books, New York. 528 pp. Wetmore, A. 1957. A fossil rail from the McKee, T., and R.A. Erickson. 2002. Pliocene of Arizona. Condor Report of the California Bird 59:267–268. Records Committee: 2000 records. Wetmore, A. 1959. Birds of the Western Birds 33:175–201. Pleistocene in North America. Miller, A. H. 1948. The whistling swan Smithsonian Miscellaneous in the Upper Pliocene of Idaho. Collections 138(4), 24 pp. Condor 50:132. White, A.H. 2002. North American bird Monroe, B.L., Jr., and C.G. Sibley. 1993. paintings by John White, Governor A world checklist of birds. Yale of Roanoke. Birding 34:130–134. University Press, New Haven. 393 Wilmore, S.B. 1974. Swans of the world. pp. Taplinger Publishing Company, Parmalee, P.W. 1961. A prehistoric New York. 229 pp. record of the trumpeter swan from Zeranski, J.D., and T.R. Baptist. 1990. central Pennsylvania. Condor Connecticut birds. University Press 75:212–213. of New England, Hanover. 328 pp.

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