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Published Document: 2020-06779 (85 FR 21282)
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AGENCY:
Fish and Wildlife Service, Interior.
ACTION:
Final rule.
SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), revise the List of Migratory Birds protected by the Migratory Bird Treaty Act (MBTA) by both adding and removing species. Reasons for the changes to the list include adding species based on new taxonomy and new evidence of natural occurrence in the United States or U.S. territories, removing species no longer known to occur within the United States or U.S. territories, and changing names to conform to accepted use. The net increase of 67 species (75 added and 8 removed) will bring the total number of species protected by the MBTA to 1,093. We regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of migratory birds. An accurate and up-to-date list of species protected by the MBTA is essential for public notification and regulatory purposes.
DATES:
This rule is effective May 18, 2020.
FOR FURTHER INFORMATION CONTACT:
Eric L. Kershner, Chief of the Branch of Conservation, Permits, and Regulations; Division of Migratory Bird Management; U.S. Fish and Wildlife Service; MS: MB; 5275 Leesburg Pike, Falls Church, VA 22041-3803; (703) 358-2376.
SUPPLEMENTARY INFORMATION:
What statutory authority does the service have for this rulemaking?
We have statutory authority and responsibility for enforcing the MBTA (16 U.S.C. 703-712), the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 742l), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-j). The MBTA implements Conventions between the United States and four neighboring countries for the protection of migratory birds, as follows:
(1)
Canada:
Convention between the United States and Great Britain [on behalf of Canada] for the Protection of Migratory Birds, August 16, 1916, 39 Stat. 1702 (T.S. No. 628), as amended by Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds, Sen. Treaty Doc. 104-28 (December 14, 1995);
(2)
Mexico:
Convention between the United States and Mexico for the Protection of Migratory Birds and Game Mammals, February 7, 1936, 50 Stat. 1311 (T.S. No. 912), as amended by Protocol with Mexico amending Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. 105-26 (May 5, 1997);
(3)
Japan:
Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, March 4, 1972, 25 U.S.T. 3329 (T.I.A.S. No. 7990); and
(4)
Russia:
Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment (Russia), November 19, 1976, 29 U.S.T. 4647 (T.I.A.S. No. 9073).
What is the purpose of this rulemaking?
Our purpose is to inform the public of the species protected by the MBTA and its implementing regulations. These regulations are found in Title 50, Code of Federal Regulations (CFR), parts 10, 20, and 21. We regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of migratory birds. An accurate and up-to-date list of species protected by the MBTA is essential for notifying the public of regulatory protections.
Why is the amendment of the List of Migratory Birds necessary?
The amendments we are adopting in this final rule are needed to:
(1) Add 16 species that qualify for protection under the MBTA;
(2) Correct the spelling of 3 species names on the alphabetized list;
(3) Correct the spelling of 3 species names on the taxonomic list;
(4) Add 30 species based on new distributional records documenting their natural occurrence in the United States or U.S. territories since 2010;
(5) Add one species moved from a family that was not protected to a family protected under the MBTA as a result of taxonomic changes;
(6) Add 28 species newly recognized as a result of recent taxonomic changes;
(7) Remove 8 species not known to occur within the boundaries of the United States or U.S. territories as a result of recent taxonomic changes;
(8) Change the common (English) names of 43 species to conform to accepted use; and
(9) Change the scientific names of 135 species to conform to accepted use.
The List of Migratory Birds (50 CFR 10.13) was last revised on November 1, 2013 (78 FR 65844). The amendments in this rule were necessitated by nine published supplements to the 7th (1998) edition of the American Ornithologists' Union (AOU, now recognized as the American Ornithological Society (AOS)) Check-list of North American Birds (AOU 2011, AOU 2012, AOU 2013, AOU 2014, AOU 2015, AOU 2016, AOS 2017, AOS 2018, and AOS 2019) and the 2017 publication of the Clements Checklist of Birds of the World (Clements et al. 2017).
What scientific authorities are used to amend the List of Migratory Birds?
Although bird names (common and scientific) are relatively stable, staying current with standardized use is necessary to avoid confusion in communications. In making our determinations, we primarily relied on the AOS's Checklist of North American birds (AOU 1998), as amended annually (AOU 1999 through 2016, AOS 2017 through 2019), on matters of taxonomy, nomenclature, and the sequence of species and other higher taxonomic categories (Orders, Families, Subfamilies) for species that occur in North America. The AOU (now AOS) Checklist of North American Birds (Checklist), developed by the AOU Committee on Classification and Nomenclature, has been the recognized taxonomic authority for North American birds since publication of the first edition of the Checklist in 1886. The committee compiles the taxonomic foundation for ornithology in North America; evaluating and codifying the latest scientific developments in the systematics, classification, nomenclature, and distribution of North American birds. Thus, the AOS's Checklist represents the best information available for developing the North American component of this List of Migratory Birds. In keeping with the increasing numbers of study areas on which taxonomy relies, the committee incorporates expertise in phylogenetics, genomics, vocalizations, morphology, behavior, and geographical distribution, as well as general ornithological knowledge. The AOS Checklist contains all bird species that have occurred in North America from the Arctic through Panama, including the West Indies and the Hawaiian Islands, and includes
( printed page 21283)
distributional information for each species, which specifies whether the species is known to occur in the United States. The committee also keeps and updates a list of species known to occur in the United States.
For the species that occur outside the geographic area covered by the AOS Checklist, we relied primarily on the Clements Checklist of Birds of the World (Clements Checklist) (Clements et al. 2007), the Clements Checklist 2017 installment of updates and corrections (Clements et al. 2017), and other peer-reviewed literature where appropriate. The Clements Checklist is a list of all known bird species in the world and is maintained and updated annually by the Cornell Laboratory of Ornithology (CLO). The CLO relies on different regional ornithological authorities to compile the list, using the AOS for the western hemisphere. Taxonomy and nomenclature are the primary focus of the Clements Checklist, but range descriptions are maintained and updated based on the best available information and do not include records of vagrancy.
Although the Service primarily relies on the above sources, when informed taxonomic opinion or documented natural distribution is inconsistent or controversial, the Service evaluates available published and unpublished information and comes to its own conclusions regarding the validity of taxa and records of distribution.
What criteria are used to identify individual species protected by the MBTA?
A species qualifies for protection under the MBTA by meeting one or more of the following criteria:
(1) It occurs in the United States or U.S. territories as the result of natural biological or ecological processes and is currently, or was previously listed as, a species or part of a family protected by one of the four international treaties or their amendments. Any species that occurs in the United States or U.S. territories solely as a result of intentional or unintentional human-assisted introduction does not qualify for the MBTA list, regardless of whether the family the species belongs to is listed in any of the treaties, unless:
It was native to the United States or its territories and extant in 1918;
It was extirpated after 1918 throughout its range in the United States and its territories; and
After such extirpation, it was reintroduced in the United States or its territories as part of a program carried out by a Federal agency.
(2) Revised taxonomy results in it being newly split from a species that was previously on the list, and the new species occurs in the United States or U.S. territories as the result of natural biological or ecological processes. If a newly recognized native species is considered extinct (following the classification of the AOS) or, for species not covered by the AOS, the Clements Checklist or peer-reviewed literature), that species will still be included if either of the following criteria apply:
The species resembles extant species included in the list that may be affected by trade if the species is not included; or
Not including the species may create difficulties implementing the MBTA and its underlying Conventions.
(3) New evidence exists for its natural occurrence in the United States or U.S. territories resulting from natural distributional changes and the species occurs in a protected family. Records must be documented, accepted, and published by the AOS committee. For the U.S. Pacific territories that fall outside the geographic scope of the AOS and for which there is no identified ornithological authority, new evidence of a species' natural occurrence will be based on the Clements Checklist and then published peer-reviewed literature, in that order.
In accordance with the Migratory Bird Treaty Reform Act of 2004 (MBTRA) (Pub. L. 108-447, 118 Stat. 2809, 3071-72), we only include migratory bird species that are native to the United States or U.S. territories. A native migratory bird species is one that is present as a result of natural biological or ecological processes. The list at 50 CFR 10.13 does not include nonnative species that occur in the United States or U.S. territories solely as a result of intentional or unintentional human-assisted introduction(s). Elsewhere in today's
Federal Register
, we publish a list of nonnative bird species that are not protected under the MBTA.
How do the changes affect the List of Migratory Birds?
Several taxonomic changes were made at the Order and Family level by the AOS since our 2013 publication of the list (78 FR 65844; November 1, 2013). These changes affect the inclusion and taxonomic order of species on this list. Specifically, the Order Cathartiformes (New World vultures) was split from the Accipitriformes (diurnal birds of prey). Cathartiformes now includes the Family Cathartidae (vultures and California Condor,
Gymnogyps californianus). At the Family level, the Oceanitidae (southern storm-petrels) was split from the Hydrobatidae (northern storm-petrels), the Tityridae (becards and tityras) was split from the Tyrannidae (tyrant flycatchers), the Passerellidae (towhees, sparrows, and juncos) was split from the Emberizidae (buntings), and the Megaluridae (
Locustella
warblers) was renamed to Locustellidae. The Ptilogonatidae (silky-flycatchers) was renamed to the Ptiliogonatidae. The Nesospingidae (Puerto Rican Tanager) and the Spindalidae (
Spindalis
genus) were split from the Thraupidae (tanagers). The yellow-breasted chat was split from the Parulidae (wood-warblers) and placed into Icteriidae (chats). Within the Scolopacidae (sandpipers, phalaropes, and allies), new Subfamilies were created: The curlews were moved to Numeniinae; the godwits to Limosinae; and small sandpipers to Arenariinae and larger sandpipers to Tringinae, including phalaropes whose previous Subfamily Phalaropodinae was removed. Within the Accipitridae (hawks, eagles, and kites), new Subfamilies were created: The White-tailed Kite was move to Elaninae, Hook-billed and Swallow-tailed Kite were moved to Gypaetinae, and all other members of the family were moved to Accipitrinae. Within the Icteridae (blackbirds), new Subfamilies were created: Yellow-headed blackbird was moved to Xanthocephalinae; bobolink was moved to Dolichonychinae; meadowlarks were moved to Sturnellinae; orioles were moved to Icterinae; and blackbirds, cowbirds, and grackles were moved to Agelaiinae. In the Falconidae (caracaras and falcons), collared forest-falcon was moved into the new Subfamily Herpetotherinae, and the Subfamily Caracarinae was removed, with crested caracara moved to the Subfamily Falconinae. In the Fringillidae (finches and allies), the Hawaiian fringillids were moved from the Subfamily Drepanidinae to Carduelinae. The Old World flycatchers in the Turdidae (thrushes) were moved to the Muscicapidae (Old World flycatchers). Bananaquit was moved from the Coerebidae (a family not protected by MBTA) to the Thraupidae (tanagers and allies), which is a family protected by the MBTA. All other tanagers were also moved from the Emberizidae (sparrows) to the Thraupidae. Within Thraupidae, the seedeaters were moved into the Subfamily Sporophilinae, and bananaquit, grassquits, and bullfinches were moved into the Subfamily Coerebinae.
All species previously receiving protection under the MBTA that have
( printed page 21284)
been moved to newly created Families continue to be protected under the MBTA.
The amendments affect a total of 252 species; 75 additions, 8 removals, and 178 name changes covering 169 species (9 species had both scientific and common name changes). The result is a net addition of 67 species to the List of Migratory Birds, increasing the number of species on the list from 1,026 to 1,093. Of the 75 species that we add to the list, 28 were previously covered under the MBTA as members of the same species (conspecific) of listed species. These amendments can be logically arranged in the following nine categories:
(1) Add 16 species that qualify for protection by the MBTA but have not been added previously. The addition of these species is the result of either accepting AOS taxonomic updates that were previously excluded or determinations of documented natural occurrence in the United States or U.S. territories. The species and relevant publication(s) are:
Piratic Flycatcher,
Legatus leucophalus
becomes
Legatus leucophaius
(4) Add 30 species based on review and acceptance by the AOS (since 2010) or by other appropriate ornithological authorities of new distributional records documenting their occurrence in the United States or U.S. territories. These species belong to families covered by at least one of the four international conventions, and all are considered to be of accidental or casual occurrence. For each species, we list the State in which it has been recorded plus the relevant publication:
Common Scoter,
Melanitta nigra
—California and Oregon (AOS 2017);
Amethyst-throated Mountain-gem,
Lampornis amethystinus
—Texas (AOS 2018, AOS 2019);
(5) Add one species because of recent taxonomic changes transferring a species in a Family formerly not protected by the MBTA (Coerebidae) into a Family protected under the MBTA (Thraupidae). We reference the AOS publication supporting the change:
Bananaquit,
Coereba flaveola
(AOU 2015).
(6) Add 28 species because of recent taxonomic changes in which taxa formerly treated as conspecific have been determined to be distinct species. Given that each of these species was formerly treated as conspecific with a listed species, these additions do not change the protective status of any of these taxa, only the names by which they are known. In each case, we reference the AOS or relevant publication supporting the change:
Stejneger's Scoter,
Melanitta stejnegeri
—formerly considered conspecific with Velvet Scoter,
Melanitta fusca
(AOS 2019);
Ridgway's Rail,
Rallus obsoletus
—formerly considered conspecific with Clapper Rail,
Rallus longirostris
(AOU 2014);
Common Gallinule,
Gallinula galeata
—formerly considered conspecific with Common Moorhen,
Gallinula chloropus
(AOU 2011);
Scripps's Murrelet,
Synthliboramphus scrippsi
—formerly considered conspecific with Xantus's Murrelet,
Synthliboramphus hypoleucus
(AOU 2012);
Salvin's Albatross,
Thalassarche salvini
—formerly considered conspecific with Shy Albatross,
Thalassarche cauta
(AOU 2014);
Gray-faced Petrel,
Pterodroma gouldi
—formerly considered conspecific with Great-winged Petrel,
Pterodroma macroptera
(AOS 2019);
Trindade Petrel,
Pterodroma arminjoniana
—formerly considered conspecific with Herald Petrel,
Pterodroma heraldica
(AOU 2015);
( printed page 21285)
Newell's Shearwater,
Puffinus newelli
—formerly considered conspecific with Townsend's Shearwater,
Puffinus auricularis
(AOU 2015);
Barolo Shearwater,
Puffinus baroli
—formerly considered conspecific with Little Shearwater,
Puffinus assimilis
(AOU 2013);
Townsend's Storm-Petrel,
Hydrobates socorroensis
—formerly considered conspecific with Leach's Storm-Petrel,
Oceanodroma leucorhous
(AOU 2016, AOS 2019);
Northern Boobook,
Ninox japonica
—formerly considered conspecific with Brown Hawk-Owl,
Ninox scutulata
(AOU 2014);
Pacific Kingfisher,
Todiramphus sacer
—formerly considered conspecific with Collared Kingfisher,
Todiramphus chloris
(Clements et al. 2015);
Mariana Kingfisher,
Todiramphus albicilla
—formerly considered conspecific with Collared Kingfisher,
Todiramphus chloris
(Clements et al. 2015);
Woodhouse's Scrub-Jay,
Aphelocoma woodhouseii
—formerly considered conspecific with Western Scrub-Jay,
Aphelocoma californica
(AOU 2016);
Kamchatka Leaf Warbler,
Phylloscopus examinandus
—formerly considered conspecific with Arctic Warbler,
Phylloscopus borealis
(AOU 2014);
Saipan Reed Warbler,
Acrocephalus hiwae
—formerly considered conspecific with Nightingale Reed Warbler,
Acrocephalus luscinius
(Clements et al. 2013);
Aguiguan Reed Warbler,
Acrocephalus nijoi
—formerly considered conspecific with Nightingale Reed Warbler,
Acrocephalus luscinius
(Clements et al. 2013);
Pagan Reed Warbler,
Acrocephalus yamashinae
—formerly considered conspecific with Nightingale Reed Warbler,
Acrocephalus luscinius
(Clements et al. 2013);
Laysan Honeycreeper,
Himatione fraithii
— formerly considered conspecific with Apapane,
Himatione sanguinea
(AOU 2015)
Kauai Nukupu‘u,
Hemignathus hanapepe
—formerly considered conspecific with Nukupuu,
Hemignathus lucidus
(AOU 2015);
Maui Nukupu‘u,
Hemignathus affins
—formerly considered conspecific with Nukupuu,
Hemignathus lucidus
(AOU 2015);
Kauai ‘Akialoa,
Akialoa stejnegeri
—formerly considered conspecific with Greater Akialoa,
Hemignathus ellisianus
(AOU 2015);
Maui Nui ‘Akialoa,
Akialoa lanaiensis
—formerly considered conspecific with Greater Akialoa,
Hemignathus ellisianus
(AOU 2015);
O‘ahu ‘Akepa,
Loxops wolstenholmei
—formerly considered conspecific with Akepa,
Loxops coccineus
(AOU 2015);
Maui ‘Akepa,
Loxops ochraceus
—formerly considered conspecific with Akepa,
Loxops coccineus
(AOU 2015);
Cassia Crossbill,
Loxia sinesciuris
—formerly considered conspecific with Red Crossbill,
Loxia curvirostra
(AOS 2017);
Sagebrush Sparrow,
Artemisiospiza nevadensis
—formerly considered conspecific with Sage Sparrow,
Amphispiza belli
(AOU 2013);
Morelet's Seedeater,
Sporophila morelleti
—formerly considered conspecific with White-collared Seedeater,
Sporophila torqueola
(AOS 2018).
(7) Remove eight species based on revised taxonomic treatments, either because a species is taxonomically merged with another species, either on or off the list; a species previously on the list is taxonomically split into multiple species and the new species is not known to occur within the United States or U.S. territories; or the species is considered extinct (following the classification of the AOS or, for species not covered by the AOS, the Clements Checklist or peer-reviewed literature) unless any of the following criteria apply: It is protected under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531et seq.), or the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; 27 U.S.T. 1087); it resembles extant species included in the list that may be affected by its removal; or its removal would create difficulties implementing the MBTA and its underlying Conventions. In each case, we reference the publication supporting these changes:
Thayer's Gull,
Larus thayeri,
now a subspecies of Iceland Gull,
Larus glaucoides
(AOS 2017);
(8) Revise the common (English) names of 43 species to conform to the most recent nomenclatural treatment as described in AOU publications 2011 through 2017, AOS 2018 and 2019 and Clements et al. (2017). Hawaiian species names are modified to official Hawaiian spelling, following the Pukui-Elbert Hawaiian Dictionary, adding the diacritical marks to the common names where applicable. The Government Publishing Office Style Manual requires the words Hawaii and Kauai to be spelled without the diacritical mark. These revisions do not change the protective status of any of these taxa, only the names by which they are known. In each case, the update is described in the table, below.
(9) Revise the scientific names of 135 species to conform to the most recent nomenclatural treatment as described in AOU publications 2011 through 2017, AOS 2018 and 2019 and Clements et al. (2017). These revisions do not change the protective status of any of these taxa, only the names by which they are known. In each case, the update is described in the table, below.
Table of name changes, as described in categories 8 and 9, above, follows. Table is organized following AOS (2019) taxonomic order. The relevant AOS publication is provided. Hawaiian common name changes are indicated with a (—).
How do the changes adopted in this rule differ from those described in the proposed rule?
On November 28, 2018, we published in the
Federal Register
(83 FR 61288) a proposed rule to revise the list of migratory birds at 50 CFR 10.13; we accepted public comments on the proposed rule for 60 days, ending January 28, 2019. Subsequently, on November 12, 2019, we published in the
Federal Register
(84 FR 60998) a revised proposed rule, and we accepted comments on our proposed revisions for 30 days, ending December 12, 2019. Taken together, our publications, the November 28, 2018, proposed rule, as revised by the November 12, 2019, revised proposed rule, include all the changes adopted in this rule with one exception: On the taxonomic list, we are correcting the scientific name of the Puerto Rican bullfinch from
Loxigilla portoricensis
to
Melopyrrha portoricensis.
How is the List of Migratory Birds organized?
The species are listed in two formats to suit the needs of different segments of the public: Alphabetically in 50 CFR 10.13(c)(1) and taxonomically in 50 CFR 10.13(c)(2). In the alphabetical listing, species are listed by common (English) group names, with the scientific name of each species following the English group name. This format, similar to that used in modern telephone directories, is most useful to members of the lay public. In the taxonomic listing, species are listed in phylogenetic sequence by scientific name, with the English name following the scientific name. To help clarify species relationships, we also list the higher-level taxonomic categories of Order, Family, and Subfamily. This format follows the sequence adopted by the AOS (1998, 2019) and is most useful to ornithologists and other scientists.
What species are not protected by the Migratory Bird Treaty Act?
The MBTA does not apply to:
(1) Nonnative species introduced into the United States or U.S. territories by means of intentional or unintentional human assistance that belong to families or groups covered by the Canadian, Mexican, or Russian Conventions. Elsewhere in today's
Federal Register
, we publish the revised list of nonnative bird species that are not protected under the MBTA. Note, though, that native species introduced into parts of the United States where they are not native are still protected under the MBTA regardless of where they occur in the United States or U.S. territories (
e.g.,
cattle egrets in Hawaii).
(2) Species native or nonnative to the United States or U.S. territories that either belong to families or groups not referred to in the Canada, Mexico, and Russia Conventions or are not included by species name in the Japan Convention. This includes the Tinamidae (tinamous), Megapodiidae (megapodes), Cracidae (chachalacas), Odontophoridae (New World quail), Phasianidae (grouse, ptarmigan, and turkeys), Pteroclidae (sandgrouse), Heliornithidae (finfoots), Burhinidae (thick-knees), Glareolidae (pratincoles), Todidae (todies), Psittacidae (parrots), Psittaculidae (Old World parrots), Meliphagidae (honeyeaters), Dicruridae (drongos), Monarchidae (monarchs), Pycnonotidae (bulbuls), Scotocercidae (bush warblers and allies), Zosteropidae (white-eyes), Sturnidae (starlings, except as listed in Japanese treaty), Ploceidae (weavers), Estrildidae (estrildid finches), and Passeridae (Old World sparrows, including house or English sparrow), as well as numerous other families not represented in the United States or U.S. territories.
Summary of Comments and Responses
On November 28, 2018, we published in the
Federal Register
(83 FR 61288) a proposed rule to revise the list of migratory birds at 50 CFR 10.13; we accepted public comments on the proposed rule for 60 days, ending January 28, 2019. We received eight comments in response to the proposed rule; seven were from private individuals, one was from an organization. Subsequently, on November 12, 2019, we published in the
Federal Register
(84 FR 60998) a revised proposed rule, and we accepted comments on our proposed revisions for 30 days, ending December 12, 2019. We received two comments in response to the revised proposed rule; one was from a private individual, one was from an organization. The following text discusses the substantive comments we received and provides our responses.
Comment (1):
One individual requested that the list be available in a more user-friendly format.
Response:
As noted above, in the Code of Federal Regulations (CFR), the list is provided in two formats for different needs. One format is ordered alphabetically by group (English) name and the other is in taxonomic order. For informational purposes only, we also provide a downloadable list online at
https://www.fws.gov/birds/management/managed-species/migratory-bird-treaty-act-protected-species.php,
in a spreadsheet format that includes multiple fields to allow for easy sorting and searching for users comfortable working with this format.
Comment (2):
One individual requested that we clarify why we are adding to the List the 16 species that we
( printed page 21289)
say qualify for protection by the MBTA but have not been added previously.
Response:
For this update, the Service reviewed previously excluded AOS taxonomic updates using contemporary scientific literature to make its determinations. For species that we are adding based on evidence of natural distribution in the United States or U.S. territories, the Service reviewed historical scientific literature prompted by recommendations made by Service staff with ornithological expertise and knowledge of species' natural distribution.
Comment (3):
One individual commented on the importance of updating the List of Migratory Birds for the public to be informed of what species are protected and to provide clarification about the taxonomy of species.
Response:
The Service agrees that it is important to maintain a current List of Migratory Birds that reflects the best available science and can inform the American public of the species that are protected by the MBTA.
Comment (4):
One commenter made the following comments:
The proposed action of the Service implicates the Just Compensation Clause of the Fifth Amendment; as a result, the action is not in compliance with Executive Order 12630 as it has significant takings implications.
The Service has provided the public with no meaningful opportunity to comment due to incorrect citations.
The Service has provided the public with no meaningful opportunity to comment because the correct citations are conclusory summations without details relating to the factual determinations.
The Service has unlawfully delegated its decision-making authority to a private organization.
The Service is unlawfully applying the MBTA by misinterpreting the plain language meaning of the term “occurring.”
Response:
Regarding the first bullet, there are no takings implications stemming from this rulemaking. Under 50 CFR 21.2, migratory birds that are lawfully acquired prior to the effective date of Federal protection under the MBTA (in this case, their addition to the List of Migratory Birds at 50 CFR 10.13) may continue to be possessed or transported without a permit. However, 50 CFR 21.2 prohibits import, export, purchase, sale, barter, or offer for purchase, sale, or barter of those species. The Supreme Court held in
Andrus
v.
Allard,
444 U.S. 51, 65-68 (1979), that the prohibitions in 50 CFR 21.2 do not amount to a regulatory taking that requires compensation under the Just Compensation Clause of the Fifth Amendment.
Regarding the second bullet, we apologize for the incorrect citations in the November 28, 2018, proposed rule; they were corrected and described individually in the November 12, 2019, revised proposed rule, for which we accepted public comment for 30 days, and they are correct in this final rule.
Regarding the third and fourth bullets, which we combine because they are interrelated with regard to the process the Service follows for determining species protected by the MBTA, the Service must rely on accepted scientific authorities and best available science when feasible. The Service has determined that the checklist published by the AOS is the best available science and a primary resource from which to reference updates in taxonomy and natural distribution for the reasons outlined above under What Scientific Authorities Are Used to Amend the List of Migratory Birds? The Service reviews and makes its own determinations for inclusion and updates to the list of protected migratory bird species, as evidenced by the Service not recognizing ackling Gogose,
Branta hutchinsii,
as a distinct species for protection until this update when the AOU made this determination in its 2004 supplement (see our response to comments in 78 FR 65844, November 1, 2013, at p. 78 FR 65849). Copies of the AOS checklist and supplements are publicly available, and these publications cite published resources used in the committee deliberations that are also considered by the Service for this rulemaking. Persons wishing to obtain more information about deliberations and evidence used by the AOS in their determinations should contact AOS directly. The Service also solicits public comments through a proposed rule when we make revisions to the list of protected species to obtain any additional information the public wishes to provide to aid us in our decision-making.
Regarding the fifth bullet, the use of the word “occurring” is ambiguous in the legislative history, and there is no evidence that Congress was concerned with the number of records documenting a species' natural occurrence in the United States or U.S. Territories. There is also no established or accepted scientific process to determine a species is occurring in the United States or U.S. Territories based on an undefined threshold number of documented records. A single documented, reviewed, and accepted record of natural occurrence in the United States or U.S. Territories is thus the threshold to qualify a species for protection by the MBTA.
Required Determinations
Regulatory Planning and Review
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule is not an Executive Order (E.O.) 13771 (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866.
Under the Regulatory Flexibility Act (5 U.S.C. 601et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 804(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (
i.e.,
small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic
( printed page 21290)
impact on a substantial number of small entities. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities. This rule is an administrative action to update the list of migratory bird species protected under the Conventions. Consequently, we certify that this rule will not have a significant economic impact on a substantial number of small entities; therefore, a regulatory flexibility analysis is not required.
This rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It will not have a significant impact on a substantial number of small entities.
a. This rule will not have an annual effect on the economy of $100 million or more.
b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501et seq.), we have determined the following:
a. This rule will not “significantly or uniquely” affect small governments. A small government agency plan is not required. This rule is an administrative action to update the list of migratory bird species protected under the Conventions; it will not affect small government activities in any significant way.
b. This rule will not produce a Federal mandate of $100 million or greater in any year;
i.e.,
it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
Takings
Under Executive Order 12630, this rule does not have significant takings implications. While certain activities that were previously unregulated will now be regulated, possession and transport of migratory bird species acquired prior to being added to the List of Migratory Birds in this rulemaking will remain unregulated under Federal law. Therefore, a takings implication assessment is not required.
Federalism
This rule does not have sufficient Federalism effects to warrant preparation of a federalism summary impact statement under Executive Order 13132. It does not interfere with the States' ability to manage themselves or their funds. No significant economic impacts are expected to result from the updating of the list of migratory bird species.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
Given that the revision of 50 CFR 10.13 is strictly administrative in nature and will have no or minor environmental effects, it is categorically excluded from further NEPA requirements (43 CFR 46.210(i)).
Endangered Species Act (ESA)
Of the species on the List of Migratory Birds, 102 species, subspecies, or distinct population segments are also listed as endangered or threatened under section 4 of the ESA of 1973, as amended (16 U.S.C. 1531et seq.). No legal complications arise from the dual listing as the two lists are developed under separate authorities and for different purposes. Because this rule is strictly administrative in nature, it has no effect on endangered or threatened species. Thus, it does not require consultation under section 7 of the ESA.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. The revisions to existing regulations in this rule are purely administrative in nature and do not interfere with the tribes' ability to manage themselves or their funds or to regulate migratory bird activities on tribal lands.
On May 18, 2001, the President issued Executive Order 13211 addressing regulations that significantly affect energy supply, distribution, or use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule will only affect the listing of protected species in the United States, it is not a significant regulatory action under Executive Order 12866, and does not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
References Cited
A complete list of all references cited is available on
http://www.regulations.gov
under Docket No. FWS-HQ-MB-2018-0047, and upon request (see
FOR FURTHER INFORMATION CONTACT
, above).
List of Subjects in Part 10
Exports
Fish
Imports
Law enforcement
Plants
Transportation
Wildlife
Regulation Promulgation
For the reasons discussed in the preamble, we amend title 50, chapter I, subchapter B, part 10 of the Code of Federal Regulations, as follows:
PART 10—GENERAL PROVISIONS
1. The authority citation for part 10 continues to read as follows:
(c)
What species are protected as migratory birds?
Species protected as migratory birds are listed in two formats to suit the varying needs of the user: Alphabetically in paragraph (c)(1) of this section and taxonomically in paragraph (c)(2) of this section. Taxonomy and nomenclature generally follow the 7th edition of the American Ornithologists' Union's (AOU, now recognized as American Ornithological
( printed page 21291)
Society (AOS))
Check-list of North American birds
(1998, as amended through 2019). For species not treated by the AOS
Check-list,
we generally follow
Clements Checklist of Birds of the World
(Clements et al. 2017).
(1)
Alphabetical listing.
Species are listed alphabetically by common (English) group names, with the scientific name of each species following the common name.
(2)
Taxonomic listing.
Species are listed in phylogenetic sequence by scientific name, with the common (English) name following the scientific name. To help clarify species relationships, we also list the higher-level taxonomic categories of Order, Family, and Subfamily.