12710 Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices 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 VerDate jul<14>2003 15:31 Mar 14, 2005 Jkt 205001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\15MRN1.SGM 15MRN1 Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices 12711 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