General Provisions; Revised List of Migratory Birds

General Provisions; Revised List of Migratory Birds

Supplementary Information

I. List of Migratory Birds (50 CFR 10.13)

Statutory Authority of the Service for Maintaining and Revising the List of Birds Protected by the MBTA

The Service (as delegated by the Secretary) has the statutory authority and responsibility for implementing and enforcing the MBTA (16 U.S.C. 703-712), the Fish and Wildlife Improvement Act of 1978 (Pub. L. 95-616; 16 U.S.C. 742l), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j, not including 742d-1). The MBTA implements conventions (bilateral treaties) 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 March 10, 1972 (23 U.S.T. 260; T.I.A.S. 7302), and 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 updates to the list of species protected by the MBTA and its implementing regulations. These regulations are found in title 50 of the Code of Federal Regulations (CFR) at parts 10, 20, 21, and 92. We regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of birds protected by the MBTA. An accurate and up-to-date list of species protected by the MBTA is essential for notifying the public and other Federal, State, and Tribal agencies of which species are subject to regulatory protections.

Why is this amendment of the list of birds protected by the MBTA necessary?

The amendments we are adopting in this final rule are needed to:

(1) Add 11 species based on new distributional records documenting their natural occurrence in the United States or U.S. territories since 2019;

(2) Add five species newly recognized as a result of recent taxonomic changes;

(3) Remove three species not known to occur within the boundaries of the United States or U.S. territories as a result of recent taxonomic changes;

(4) Change the common (English) names of eight species to conform to accepted use; and

(5) Change the scientific names of 22 species to conform to accepted use.

The List of Birds Protected by the MBTA (50 CFR 10.13) was last revised on April 16, 2020 (85 FR 21282). The amendments in this rule were necessitated by three published supplements and one published addendum to a supplement to the 7th (1998) edition of the American Ornithologists' Union (AOU, now recognized as the American Ornithological Society (AOS)) Checklist of North American Birds (AOS 2020a, 2020b, 2021, and 2022) and the 2016, 2019, and 2021 publications of the Clements Checklist of Birds of the World (Clements et al. 2016, 2019, 2021).

What scientific authorities are used to amend the list of birds protected by the MBTA?

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 (AOS 2020a, 2020b, 2021, and 2022), 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 AOS Checklist of North American Birds (Checklist), developed by the AOS 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; they evaluate and publish the latest scientific developments in the systematics, classification, nomenclature, and distribution of North American birds. Thus, the AOS's Checklist represents the best scientific information available for developing the North American component of this List of Birds Protected by the MBTA. 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 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 in the U.S. territories 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 2016, 2019, and 2021 installment of updates and corrections (Clements et al. 2016, 2019, 2021), 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 Clements Checklist, using the AOS for the western hemisphere. Taxonomy and nomenclature are the primary focus of the Clements Checklist. Range descriptions are maintained and updated based on the best available information but do not include records of vagrancy.

Although we primarily rely on the above sources, when informed taxonomic opinion is inconsistent or controversial, we evaluate available published and unpublished information and come to our own conclusion regarding the validity of taxa and whether to include taxonomic changes. We also evaluate available documentation for new species documented to occur naturally in the United States or U.S. territories and come to our own conclusion regarding whether to add those species to the List of Birds Protected by the MBTA.

For this update, we reviewed 13 species that were added to the AOS Checklist based on new natural distribution in the United States or U.S. territories (AOS 2020a, 2021, and 2022). Based on the available evidence and criteria to identify individual species that qualify for protection by the MBTA (see below), we add 11 of those 13 species. We elected not to add 2 of the 13 species, Red-backed Shrike, Lanius collurio, and Graylag Goose, Anser anser.

When we reviewed the evidence for the record of Red-backed Shrike that was accepted by the AOS, along with an analysis from an AOS committee member, we learned the shrike in question was a juvenile. The best current information does not reliably demonstrate how juveniles of Red-backed Shrike can be distinguished from juvenile Red-tailed Shrikes, Lanius phoenicuroides, and the two species are also known to commonly hybridize. While there are descriptions available in the literature of adult hybrids of these two shrike species, this is not the case for juvenile hybrids. Therefore, due to the challenges in identification, we decided not to include this record at this time. We may revisit this decision to exclude the Red-backed Shrike in a subsequent update to the list if a reliable method of distinguishing juveniles and hybrid juveniles of the two species is devised.

Regarding the Graylag Goose, we considered the regulatory implications of adding it to the list because the species intermixes with other goose species that may be hunted under the Service's and State hunting regulations. We decided not to add the species at this time while we consider those regulatory implications, similar to how we treated the split of Cackling Goose, Branta hutchinsii, from Canada Goose, Branta canadensis, in 2013 (78 FR 65844; November 1, 2013), later adding the species to the 50 CFR 10.13 list in 2020 (85 FR 21282; April 16, 2020). We may reconsider adding this species in a subsequent update to the list once the frequency of the species occurring in the United States is better understood and what the implications to hunting regulations in 50 CFR part 20 would be. We reserve the right to revisit these decisions if additional information becomes available.

As is customary with species subject to our hunting regulations at 50 CFR part 20, we consulted with the Pacific, Central, Mississippi, and Atlantic Flyway Councils in our review of the taxonomic split of Mexican Duck from Mallard. We also reviewed published scientific literature regarding the Mallard split (Bellrose 1976; Hubbard 1977; Brown 1985; Lavretsky et al. 2015, 2019; AOS 2020a). Ultimately, we concluded to add Mexican Duck to the list.

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 a member of a family protected by one of the four international treaties or their amendments. A naturally occurring species is protected by the MBTA as a member of a protected family even if the species is ecologically nonmigratory, meaning it does not exhibit seasonal movements (also known as a resident species). For example, the Bushtit ( Psaltriparus minimus ) is a resident, nonmigratory species and is included in 50 CFR 10.13 because it occurs in a family (Aegithalidae) that is protected by the bilateral treaty with Canada. 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 either native to the United States or its territories and extant in 1918; or
• 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 American Ornithological Society (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 or other commercial activities 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 new or natural distributional changes and the species belongs to 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. Records and the evidence supporting their acceptance by the AOS, Clements Checklist, or peer-reviewed literature are reviewed independently by the Service before we propose adding the species to the list.

In accordance with the Migratory Bird Treaty Reform Act of 2004 (MBTRA) (Pub. L. 108-447, December 8, 2004, 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). An amended list of the nonnative bird species that have been introduced by humans into the United States or U.S. territories and to which the MBTA does not apply was published in the Federal Register on April 16, 2020 (85 FR 21262), with a correction published on May 3, 2021 (86 FR 23422).

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. Note, though, that native species that are 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.

(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.

How do the changes affect the list of birds protected by the MBTA?

The amendments (16 additions, 3 removals, and 30 name changes) affect a total of 47 species and result in a net addition of 13 species to the List of Migratory Birds Protected by the MBTA, increasing the number of species on the list from 1,093 to 1,106. Five of the 16 added species are new species that have been recognized as a result of a taxonomic split and occur in the United States or U.S. territories and were previously covered under the MBTA as members of listed species (conspecific). These amendments can be logically arranged in the following five categories:

(1) Add 11 species based on review and acceptance by the AOS (since 2019), or by other appropriate ornithological authorities, and the Service 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 or U.S. territory in which it has been recorded plus the relevant publication:

Chestnut-winged Cuckoo, Clamator coromandus -Guam (Kastner et al., 2018);

Dark-billed Cuckoo, Coccyzus melacoryphus -Texas and Florida (AOS 2020a);

Hooded Crane, Grus monacha -Alaska (AOS 2022);

Northern Giant-Petrel, Macronectes halli -Washington (AOS 2022);

Long-legged Buzzard, Buteo rufinus -Alaska (AOS 2020a);

Pallas's Gull, Ichthyaetus ichthyaetus -Alaska (AOS 2021);

Inca Tern, Larosterna inca -Hawaii (AOS 2022);

Small-billed Elaenia, Elaenia parvirostris -Illinois (AOS 2022);

Pallas's Grasshopper Warbler, Helopsaltes certhiola -Alaska (AOS 2021);

Blue-and-white Swallow, Pygochelidon cyanoleuca -Texas (AOS 2022); and

Naumann's Thrush, Turdus naumanni -Alaska (AOS 2022).

(2) Add five species because of recent taxonomic changes in which taxa formerly treated as conspecific have been determined to be distinct species ( i.e., a taxonomic split). Given that each of these species was formerly treated as conspecific with a listed species, these additions would 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:

Mexican Duck, Anas diazi -formerly considered conspecific with Mallard, Anas platyrhynchos (AOS 2020a);

Short-billed Gull, Larus brachyrhynchus -formerly named Mew Gull and considered conspecific with Larus canus, which now has the English name of Common Gull and remains on the list based on prior occurrences of the Common Gull taxon in the United States (AOS 2021);

Puerto Rican Mango, Anthracothorax aurulentus -formerly considered conspecific with Antillean Mango, Anthracothorax dominicus (AOS 2022);

Asian Stonechat, Saxicola maurus -formerly considered conspecific with Stonechat, Saxicola torquatus (AOS 2022); and

Chihuahuan Meadowlark, Sturnella lilianae -formerly considered conspecific with Eastern Meadowlark, Sturnella manga (AOS 2022).

(3) Remove three 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. 1531 et 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:

Northwestern Crow, Corvus caurinus, is combined with American Crow, Corvus brachyrhynchos (AOS 2020a);

Antillean Mango, Anthracothorax dominicus (AOS 2022); and

Stonechat, Saxicola torquatus (AOS 2022).

(4) Revise the common (English) names of eight species to conform to the most recent nomenclatural treatment as described in AOS publications 2020a, 2020b, and 2021 and Clements et al. 2011, 2019, and 2021. 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.

(5) Revise the scientific names of 22 species to conform to the most recent nomenclatural treatment as described in AOS publications 2020a and 2021 and Clements et al. 2016 and 2021. 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.

How is the list of birds protected by the MBTA 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 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, 2021) and is most useful to ornithologists and other scientists.

In this rule, we present a new table format for the alphabetical and taxonomic listings at 50 CFR 10.13(c)(1) and (c)(2), respectively. We made this change in presenting these listings to conform to the Office of the Federal Register's formatting standards and to make information on the lists clearer and easier to locate. For clarity, we also added a new section heading for 50 CFR 10.13: rather than the current "List of Migratory Birds," we title this section of the regulations, "List of Birds Protected by the Migratory Bird Treaty Act."

II. Special Double-Crested Cormorant Permit (50 CFR 21.123)

Because we are revising the scientific name for the Double-crested Cormorant on the List of Birds Protected by the MBTA at 50 CFR 10.13, as described above, we also revise the scientific name for that species ( Nannopterum auritum ) in our special permit regulations related to that species at 50 CFR 21.123. This is purely an administrative action that does not amend the purpose of, eligibility for, application procedures for, conditions of, information-collection requirements associated with, or any other regulatory provisions associated with that permit.

III. List of Endangered and Threatened Wildlife (50 CFR 17.11(h))

We also revise the corresponding entries on the List of Endangered and Threatened Wildlife of several migratory bird species that are also listed as endangered or threatened species under the ESA to reflect the currently accepted taxonomy and nomenclature. These revisions ensure consistency in the use of common and scientific names across Service regulations. Some ESA-listed migratory bird species' names are not included in this rule because they are being corrected in other documents that have published, or will publish, in the Federal Register .

Background

The List of Endangered and Threatened Wildlife and the List of Endangered and Threatened Plants ("the ESA Lists"), set forth in title 50 of the CFR at §§ 17.11 and 17.12, respectively, contain the names of endangered species and threatened species federally listed pursuant to the ESA.

The regulations at 50 CFR 17.11(c) and 17.12(b) direct us to use the most recently accepted scientific name of any wildlife or plant species that we have determined to be an endangered or threatened species.

Purpose

We revise the ESA List at 50 CFR 17.11(h) to reflect the scientifically accepted taxonomy and nomenclature of nine bird species listed under section 4 of the ESA. These revisions reflect the most recently accepted scientific nomenclature in accordance with 50 CFR 17.11(c).

None of the taxonomic changes to migratory bird species listed as endangered or threatened species under the ESA are regulatory in nature; they are for accuracy and clarity. These revisions do not alter species' protections or status under either the MBTA or ESA in any way. Any actions altering a species' protection or status would require a separate rulemaking action following the procedures of 50 CFR part 424.

Taxonomic Changes to the List of Endangered and Threatened Wildlife

The table below lists the taxonomic changes that reflect the revised taxonomy and nomenclature for nine bird species listed under section 4 of the ESA. These changes reflect the most recently accepted scientific nomenclature in accordance with 50 CFR 17.11(c).

Using the best available scientific information, this rule documents taxonomic changes of the scientific names for nine birds in their entries on the ESA List. To the extent practicable, the Service relies on the Integrated Taxonomic Information System (ITIS) to determine a species' scientific name for inclusion on the List. ITIS incorporates the naming principles established by the International Code of Zoological Nomenclature, produced by the International Commission on Zoological Nomenclature, an organization that provides and regulates a uniform system of zoological nomenclature. While ITIS is a reliable database source of taxonomic information, ITIS is incomplete and does not yet reflect the most recently accepted scientific names for some species. As noted above, the scientific names for the nine listed bird species are supported by AOS's Checklist of North American birds (AOU 1998), as amended annually (AOU 2006, 2010, 2012, 2014, 2016; AOS 2018, 2020a, 2020b, and 2021). The Service finds that the scientific and common names should be recognized as presented in the table above. Accordingly, we revise the scientific names of these species under section 4 of the ESA and in accordance with 50 CFR 17.11(c).

Of the nine species that are subject to the taxonomic revisions of the ESA List in this rule, three have designated critical habitat. For clarity and consistency, we revise the headings of the critical habitat designations at 50 CFR 17.95(b) to reflect the corrected scientific names for the following species: Mississippi sandhill crane, Cape Sable seaside sparrow, and Inyo California towhee.

These changes do not affect the range or endangered or threatened status for any of these nine listed migratory bird species, or any designated critical habitat.

IV. Summary of Comments and Responses

On December 12, 2022, we published in the Federal Register (87 FR 75977) 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 February 10, 2023. We received seven comments in response to the proposed rule; five were from private individuals, one was from a State Game and Fish Department, and one was from an organization. Several comments supported the changes we proposed. The following text discusses the substantive comments we received by topic and provides our responses.

Comment (1): One individual requested that no species be removed from protection.

Response: As explained above, species are removed from the list of migratory birds at 50 CFR 10.13 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. 1531 et 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. We are removing three species from the list that fit one or more of these criteria.

Comment (2): One individual requested that Ainley's Storm-Petrel ( Hydrobates cheimomnestes ) be added to the list of migratory birds at 50 CFR 10.13 because there is published evidence of its occurrence in waters off California and provided a weblink for the publication.

Response: We reviewed the published evidence for the occurrence of Ainley's Storm-Petrel. In summary, the published evidence is for a scientific study where Ainley's Storm-Petrels breeding on an islet in Mexico were tagged with Global Positioning System data loggers and the tracks of multiple birds showed birds flew into U.S. waters off the coast of southern California. As described above, we primarily rely on the expertise of the AOS Committee on Classification and Nomenclature to compile the distributional information for each species on the AOS Checklist, including whether the species is known to occur in the United States. We then evaluate available documentation for any species added based on new natural distribution in the United States and come to our own conclusion about adding it to the list. The AOS Committee has not yet published a decision on these potential occurrences of Ainley's Storm-Petrel in the United States and has not yet addressed the occurrence of any species established only by the presence of birds tagged with GPS-data loggers. We will evaluate whether to add the species to the list after the AOS Committee or other ornithological experts have assessed the evidence for occurrence of Ainley's Storm-Petrel in U.S. waters based solely on remote-sensing technology.

Comment (3): One commenter made the comment that the Service is unlawfully applying the MBTA by misinterpreting the plain language meaning of the term "occurring."

Response: The Service's interpretation of the term "occurring" is a reasonable reading of the MBTA, which protects species "native to the United States or its territories" and defines that phrase to mean "occurring in the United States or its territories as the result of natural biological or ecological processes" (16 U.S.C. 703(b)(2)). This definition demonstrates that the word "occurring" refers to the species protected by the statute. "Species" is a collective noun that refers to a group of individual birds-in other words, a "species" occurs wherever there is an individual member of the species. Therefore, the MBTA encompasses every bird species covered by the treaties for which there has been at least one occurrence in the United States or its territories as the result of natural processes. Moreover, nothing in the statute's legislative history suggests 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. Thus, a single documented, reviewed, and accepted record of natural occurrence in the United States or U.S. territories is not only a reasonable threshold to qualify a species for protection under the MBTA but is the threshold compelled by the plain language of the statute.

V. Summary of Changes From the Proposed Rule

As noted above under IV. Summary of Comments and Responses, in this final rule, we do not make any substantive changes to our December 12, 2022, proposed rule (87 FR 75977) in response to comments we received during that proposal's comment period. Further, we did not receive any new information that led us to make any substantive changes to our proposed rule in this final rule. The only changes we have made to the proposed rule in this final rule are minor editorial revisions to correct spellings or to ensure clarity and consistency in the formatting and presentation of the rule.

VI. Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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.

Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866 and E.O 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. 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.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (5 U.S.C. 601 et 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 does 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 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 and make certain corresponding updates on the ESA List. Because of the administrative nature of this rulemaking, the final rule will have no known economic impacts on small entities. 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.

Congressional Review Act

This rule is not a major rule under 5 U.S.C. 804(2), the Congressional Review Act. 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. 1501 et seq. ), we have determined the following:

a. This rule does 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 and make certain corresponding updates on the ESA List; it does not affect small government activities in any significant way.

b. This rule does 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

In accordance with Executive Order 12630, this rule does not have significant takings implications. This rule does not contain a provision for the taking of private property. 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 updating the list of migratory bird species and certain entries on the ESA List.

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. 3501 et 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 revisions in this document are strictly administrative in nature, this action is categorically excluded from further NEPA requirements (see 43 CFR 46.210(i), applying to policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature).

Endangered Species Act (ESA)

Of the species on the List of Birds Protected by the Migratory Bird Treaty Act, 89 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. 1531 et seq. ). No legal complications arise from the dual listing as the two lists are developed under separate authorities for different purposes. Because this rule is strictly administrative in nature, it has no effect on endangered or threatened species or their designated critical habitats. 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 or affect the Tribes' ability to manage themselves or their funds or to regulate migratory bird activities on Tribal lands.

Energy Supply, Distribution, or Use (Executive Order 13211)

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 is an administrative action to update the list of migratory bird species protected under the Conventions and make certain corresponding updates on the ESA List, it is not a significant regulatory action under Executive Order 12866, and it 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 https://www.regulations.gov under Docket No. FWS-HQ-MB-2022-0036, and upon request (see FOR FURTHER INFORMATION CONTACT , above).

Regulation Promulgation

For the reasons discussed in the preamble, we amend title 50, chapter I, subchapter B of the Code of Federal Regulations, as follows:

Part 10 General Provisions