Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 8931 

subject to OMB approval under the 

Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq., or impose any 

enforceable duty or contain any 

unfunded mandate as described under 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Public 

Law 104–4). Nor does it require any 

special considerations under Executive 

Order 12898, entitled Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994); or OMB review or any Agency 

action under Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note). Since 

tolerances and exemptions that are 

established on the basis of a petition 

under section 408(d) of FFDCA, such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.) do not apply. In addition, the 

Agency has determined that this action 

will not have a substantial direct effect 

on States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, entitled 

Federalism(64 FR 43255, August 10, 

1999). Executive Order 13132 requires 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ This final rule 

directly regulates growers, food 

processors, food handlers, and food 

retailers, not States. This action does not 

alter the relationships or distribution of 

power and responsibilities established 

by Congress in the preemption 

provisions of section 408(n)(4) of 

FFDCA. For these same reasons, the 

Agency has determined that this rule 

does not have any ‘‘tribal implications’’

as described in Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 6, 2000). Executive 

Order 13175, requires EPA to develop 

an accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes.’’ This 

rule will not have substantial direct 

effects on tribal governments, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

VII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: February 16, 2007. 

James Jones, 

Director, Office of Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.625 is added to read as 

follows: 

§180.625 Orthosulfamuron; tolerances for 

residues. 

(a) General. Tolerances are 

established for residues of 

orthosulfamuron 1-(4,6- 

dimethoxypyrimidin-2-yl)-3-[2- 

(dimethylcarbamoyl)- phenylsulfamoyl] 

urea) per se in or on the following 

commodities: 

Commodity Parts per million 

Rice, grain ...................... 0.05 

Rice, straw ...................... 0.05 

(b) Section 18 emergency exemptions. 

[Reserved] 

(c) Tolerances with regional 

registrations. [Reserved] 

(d) Indirect and inadvertant residues. 

[Reserved] 

[FR Doc. 07–898 Filed 2–23–07; 2:13 pm] 

BILLING CODE 6560–50–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

RIN 1018–AI92 

Migratory Bird Permits; Take of 

Migratory Birds by the Armed Forces 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Migratory Bird Treaty Act 

(MBTA) prohibits the taking, killing, or 

possessing of migratory birds unless 

permitted by regulations promulgated 

by the Secretary of the Interior. While 

some courts have held that the MBTA 

does not apply to Federal agencies, in 

July 2000, the United States Court of 

Appeals for the District of Columbia 

Circuit ruled that the prohibitions of the 

MBTA do apply to Federal agencies, 

and that a Federal agency’s taking and 

killing of migratory birds without a 

permit violated the MBTA. On March 

13, 2002, the United States District 

Court for the District of Columbia ruled 

that military training exercises of the 

Department of the Navy that 

incidentally take migratory birds 

without a permit violate the MBTA. 

On December 2, 2002, the President 

signed the 2003 National Defense 

Authorization Act (Authorization Act). 

Section 315 of the Authorization Act 

provides that, not later than one year 

after its enactment, the Secretary of the 

Interior (Secretary) shall exercise his/ 

her authority under Section 704(a) of 

the MBTA to prescribe regulations to 

exempt the Armed Forces for the 


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8932 Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 

incidental taking of migratory birds 

during military readiness activities 

authorized by the Secretary of Defense 

or the Secretary of the military 

department concerned. The 

Authorization Act further requires the 

Secretary to promulgate such 

regulations with the concurrence of the 

Secretary of Defense. The Secretary has 

delegated this task to the U.S. Fish and 

Wildlife Service (Service). 

In passing the Authorization Act, 

Congress itself determined that allowing 

incidental take of migratory birds as a 

result of military readiness activities is 

consistent with the MBTA and the 

treaties. With this language, Congress 

clearly expressed its intention that the 

Armed Forces give appropriate 

consideration to the protection of 

migratory birds when planning and 

executing military readiness activities, 

but not at the expense of diminishing 

the effectiveness of such activities. This 

rule has been developed by the Service 

in coordination and cooperation with 

the Department of Defense and the 

Secretary of Defense concurs with the 

requirements herein. 

Current regulations authorize permits 

for take of migratory birds for activities 

such as scientific research, education, 

and depredation control (50 CFR parts 

13, 21 and 22). However, these 

regulations do not expressly address the 

issuance of permits for incidental take. 

As directed by Section 315 of the 

Authorization Act, this rule authorizes 

such take, with limitations, that result 

from military readiness activities of the 

Armed Forces. If any of the Armed 

Forces determine that a proposed or an 

ongoing military readiness activity may 

result in a significant adverse effect on 

a population of a migratory bird species, 

then they must confer and cooperate 

with the Service to develop appropriate 

and reasonable conservation measures 

to minimize or mitigate identified 

significant adverse effects. The 

Secretary of the Interior, or his/her 

designee, will retain the power to 

withdraw or suspend the authorization 

for particular activities in appropriate 

circumstances. 

DATES: This rule is effective March 30, 

2007. 

ADDRESSES: The final rule and other 

related documents can be downloaded 

at http://migratorybirds.fws.gov. The 

complete file for this rule is available for 

inspection, by appointment, during 

normal business hours at the Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service, 4401 North Fairfax 

Drive, Arlington, Virginia 22203, 

telephone 703–358–1714. 

FOR FURTHER INFORMATION CONTACT: 

Robert Blohm, Chief, Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service, telephone 703–

358–1714. 

SUPPLEMENTARY INFORMATION: 

Background 

Migratory birds are of great ecological 

and economic value and are an 

important international resource. They 

are a key ecological component of the 

environment, and they also provide 

immense enjoyment to millions of 

Americans who study, watch, feed, or 

hunt them. Recognizing their 

importance, the United States has been 

an active participant in the 

internationally coordinated 

management and conservation of 

migratory birds. The Migratory Bird 

Treaty Act (16 U.S.C. 703–712) (MBTA) 

is the primary legislation in the United 

States established to conserve migratory 

birds. The U.S. Fish and Wildlife 

Service (Service), is the Federal agency 

within the United States responsible for 

administering and enforcing the statute. 

The MBTA, originally passed in 1918, 

implements the United States’

commitment to four bilateral treaties, or 

conventions, for the protection of a 

shared migratory bird resource. The 

original treaty upon which the MBTA 

was based was the Convention for the 

Protection of Migratory Birds, signed 

with Great Britain in 1916 on behalf of 

Canada for the protection ‘‘of the many 

species of birds that traverse certain 

parts of the United States and Canada in 

their annual migration.’’ The MBTA was 

subsequently amended after treaties 

were signed with Mexico (1936, 

amended 1972, 1997), Japan (1972), and 

Russia (1976), and the amendment of 

the treaty with Canada (1995). 

While the terms of the treaties vary in 

their particulars, each treaty and 

subsequent amendments impose 

substantive obligations on the United 

States for the conservation of migratory 

birds and their habitats. For example, 

the Canada treaty, as amended, includes 

the following conservation principles: 

• To manage migratory birds 

internationally; 

• To ensure a variety of sustainable 

uses; 

• To sustain healthy migratory bird 

populations for harvesting needs; 

• To provide for, maintain, and 

protect habitat necessary for the 

conservation of migratory birds; and 

• To restore depleted populations of 

migratory birds. 

The Canada and Mexico treaties 

protect selected families of birds, while 

the Japan and Russia treaties protect 

selected species of birds. All four 

treaties provide for closed seasons for 

hunting game birds. The list of the 

species protected by the MBTA appears 

in title 50, section 10.13, of the Code of 

Federal Regulations (50 CFR 10.13). 

Under the MBTA, it is unlawful ‘‘by 

any means or in any manner, to pursue, 

hunt, take, capture, [or] kill’’ any 

migratory birds except as permitted by 

regulation (16 U.S.C. 703). The 

Secretary is authorized and directed, 

from time to time, having due regard to 

the zones of temperature and to the 

distribution, abundance, economic 

value, breeding habits, and times and 

lines of migratory flight of such birds to 

adopt suitable regulations permitting 

and governing the take of migratory 

birds when determined to be compatible 

with the terms of the treaties (16 U.S.C. 

704). Furthermore, the regulations at 50 

CFR 21.11 prohibit the take of migratory 

birds except under a valid permit or as 

permitted in the implementing 

regulations. The Service has defined 

‘‘take’’ in regulation to mean to ‘‘pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect’’ or to attempt these activities 

(50 CFR 10.12). 

On July 18, 2000, the United States 

Court of Appeals for the District of 

Columbia ruled in Humane Society v. 

Glickman, 217 F.3d 882 (D.C. Cir. 2000), 

that Federal agencies are subject to the 

take prohibitions of the MBTA. The 

United States had previously taken the 

position, and two other courts of 

appeals held or suggested, that the 

MBTA does not by its terms apply to 

Federal agencies. See Sierra Club v. 

Martin, 110 F.3d 1551, 1555 (11th Cir. 

1997); Newton County Wildlife Ass’n v. 

U.S. Forest Service, 113 F.3d 110, 115 

(8th Cir. 1997). Subsequently, on 

December 20, 2000, we issued Director’s 

Order 131 to clarify the Service’s 

position that, pursuant to Glickman, 

Federal agencies are subject to the 

permit requirements of the Service’s 

existing regulations. 

Because the MBTA is a criminal 

statute and does not provide for citizensuit enforcement, a private party who 

violates the MBTA is subject to 

investigation by the Service and/or 

prosecution by the Department of 

Justice. However, the Administrative 

Procedure Act (5 U.S.C. 551 et seq.) 

(APA) allows private parties to file suit 

to prevent a Federal agency from taking 

‘‘final agency action’’ that is ‘‘arbitrary, 

capricious, an abuse of discretion, or 

otherwise not in accordance with law’’

(5 U.S.C. 706(2)(A)). If the prohibitions 

of the MBTA apply to Federal agencies, 

private parties could seek to enjoin 

Federal actions that take migratory 

birds, unless such take is authorized 

pursuant to regulations developed in 


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Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 8933 

accordance with 16 U.S.C. 704, even 

when such Federal actions are necessary 

to fulfill Government responsibilities 

and even when the action poses no 

threat to the species at issue. 

In Center for Biological Diversity v. 

Pirie, a private party obtained an 

injunction prohibiting live-fire military 

training exercises of the Department of 

the Navy that had the effect of killing 

some migratory birds on the island of 

Farallon de Medinilla (FDM) in the 

Pacific Ocean. On March 13, 2002, the 

United States District Court for the 

District of Columbia ruled that the Navy 

activities at FDM resulting in a take of 

migratory birds without a permit from 

the Service violated the MBTA and the 

APA (191 F. Supp. 2d. 161 and 201 F. 

Supp. 2d 113). On May 1, 2002, after 

hearing argument on the issue of 

remedy, the Court entered a preliminary 

injunction ordering the Navy to apply 

for a permit from the Service to cover 

the activities, and preliminarily 

enjoined the training activities for 30 

days. The United States Court of 

Appeals for the District of Columbia 

Circuit stayed the District Court’s 

preliminary injunction pending appeal. 

The preliminary injunction, and 

associated stay, expired on May 31, 

2002. A permanent injunction was 

issued by the District Court on June 3, 

2002. The Circuit Court also stayed this 

injunction pending appeal on June 5, 

2002. On December 2, 2002, the 

President signed the Authorization Act 

creating an interim period during which 

the prohibitions on incidental take of 

migratory birds would not apply to 

military readiness activities. During the 

interim period, Congress also directed 

the Secretary of the Interior to develop 

regulations that exempt the Armed 

Forces from incidental take during 

authorized military readiness activities. 

The Department of Defense must concur 

with the regulations before they take 

effect. The Circuit Court subsequently 

dismissed the Pirie case as moot. In light 

of the Glickman and Pirie decisions, the 

authorization that this rule provides is 

essential to preserving the Service’s role 

in determining what military readiness 

activities, if any, create an unacceptable 

risk to migratory bird resources and 

therefore must be modified or curtailed. 

The Armed Forces are responsible for 

protecting the United States from 

external threats. To provide for national 

security, they engage in military 

readiness activities. ‘‘Military readiness 

activity’’ is defined in the Authorization 

Act to include all training and 

operations of the Armed Forces that 

relate to combat, and the adequate and 

realistic testing of military equipment, 

vehicles, weapons, and sensors for 

proper operation and suitability for 

combat use. It includes activities carried 

out by contractors, when such 

contractors are performing a military 

readiness activity in association with 

the Armed Forces, including training 

troops on the operation of a new 

weapons system or testing the 

interoperability of new equipment with 

existing weapons systems. Military 

readiness does not include (a) the 

routine operation of installation 

operating support functions, such as: 

administrative offices; military 

exchanges; commissaries; water 

treatment facilities; storage facilities; 

schools; housing; motor pools; 

laundries; morale, welfare, and 

recreation activities; shops; and mess 

halls, (b) the operation of industrial 

activities, or (c) the construction or 

demolition of facilities listed above. 

Section 315 of the 2003 National 

Defense Authorization Act (Pub. L. 107–

314, 116 Stat. 2458, Dec. 2, 2002, 

reprinted in 16 U.S.C. 703 note) 

(hereinafter ‘‘Authorization Act’’) 

requires the Secretary of Defense, in 

consultation with the Secretary, to 

identify ways to minimize, mitigate, and 

monitor take of migratory birds during 

military readiness activities and 

requires the Secretary to prescribe, with 

the concurrence of the Secretary of 

Defense, a regulation that exempts 

military readiness activities from the 

MBTA’s prohibitions against take of 

migratory birds. With the passage of the 

Authorization Act, Congress determined 

that such regulations are consistent with 

the MBTA and the underlying treaties 

by requiring the Secretary to promulgate 

such regulations. Furthermore, Congress 

clearly expressed its intention that the 

Armed Forces give appropriate 

consideration to the protection of 

migratory birds when planning and 

executing military readiness activities, 

but not at the expense of diminishing 

the effectiveness of such activities. Any 

diminishment in effectiveness could 

impair the ability of the Armed Forces 

to fulfill their national security mission. 

Diminishment could occur when 

military training or testing is modified 

in ways that do not allow the full range 

of training methods to be explored. 

This rule authorizes the Armed Forces 

to take migratory birds incidental to 

military readiness activities, subject to 

certain limitations and subject to 

withdrawal of the authorization to 

ensure consistency with the provisions 

of the migratory bird treaties. The 

authorization provided by this rule is 

necessary to ensure that the work of the 

Armed Forces in meeting their statutory 

responsibilities can go forward. This 

rule is also appropriate and necessary to 

ensure compliance with the treaties and 

to protect a vital resource in accordance 

with the Secretary’s obligations under 

Section 704 of the MBTA as well as 

under Section 315 of the Authorization 

Act. This rule will continue to ensure 

conservation of migratory birds as the 

authorization it provides is dependent 

upon the Armed Forces conferring and 

cooperating with the Service to develop 

and implement conservation measures 

to minimize or mitigate significant 

adverse effects to migratory birds. This 

rule has been developed by the Service 

in coordination and cooperation with 

the Department of Defense, and the 

Secretary of Defense concurs with the 

requirements herein. 

Executive Order 13186 

Migratory bird conservation relative 

to activities of the Department of 

Defense and the Coast Guard other than 

military readiness activities are 

addressed separately in Memoranda of 

Understanding (MOUs) developed in 

accordance with Executive Order 13186, 

Responsibilities of Federal Agencies to 

Protect Migratory Birds, signed January 

10, 2001. The MOU with the 

Department of Defense was published in 

the Federal Register August 30, 2006 

(Volume 71, Number 168). Upon 

completion of the MOUs with 

additional Federal agencies, and in 

keeping with the intent of the Executive 

Order for Federal agencies to promote 

the conservation of migratory bird 

populations, the Service may issue 

incidental take authorization to address 

specific actions identified in the MOUs. 

Responses to Public Comment 

On June 2, 2004, we published in the 

Federal Register (69 FR 31074) a 

proposed rule to authorize the take of 

migratory birds, with limitations, that 

result from Department of Defense 

military readiness activities. We 

solicited public comment on the 

proposed rule for 60 days ending on 

August 2, 2004. 

By this date, we received 573 

comments in response to the proposed 

rule; 24 were from identified 

organizations or agencies. The following 

text discusses the substantive comments 

received and provides our response to 

those comments. Additionally, it 

provides an explanation of significant 

changes from the proposed rule. We do 

not specifically address the comments 

that simply opposed the rule unless 

they included recommendations for 

revisions. Comments are organized by 

topic. 

To more closely track the language in 

the Authorization Act and to clarify that 

the rule applies to the incidental taking 


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8934 Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 

of a migratory bird by a member of the 

Armed Forces during a military 

readiness activity, we have replaced the 

‘‘Department of Defense’’ with ‘‘Armed 

Forces,’’ where applicable. 

Violation of the Migratory Bird Treaty 

Act and the Four Migratory Bird 

Treaties 

Comment: The statement that the rule 

allows take only in ‘‘narrow instances’’

of military readiness activities goes 

against the spirit and letter of the 

MBTA, which forbids the take of 

migratory birds and thus abrogates the 

MBTA. 

Service Response: The MBTA 

regulates, rather than absolutely forbids, 

take of migratory birds. The Secretary is 

authorized and directed, from time to 

time, having due regard to the zones of 

temperature and to the distribution, 

abundance, economic value, breeding 

habits, and times and lines of migratory 

flight of such birds to adopt suitable 

regulations permitting and governing 

the take of migratory birds when 

determined to be compatible with the 

terms of the treaties (16 U.S.C. 704). In 

the Authorization Act, Congress 

directed the Secretary to utilize his/her 

authority to permit incidental take for 

military readiness activities. 

Furthermore, Congress itself by passing 

the Authorization Act determined that 

allowing incidental take of migratory 

birds as a result of military readiness 

activities is consistent with the MBTA 

and the treaties. Thus, this rule does not 

abrogate the MBTA. 

Comment: Citing broad take 

authorization language in the current 

text of the treaty with Canada, concern 

was expressed regarding the analysis in 

the proposed rule that the treaty with 

Canada has a narrower focus than the 

treaties with Japan and Russia. 

Service Response: We agree with the 

commenter that the Canada treaty, as 

amended by the 1995 Protocol, now 

includes broad exception language 

similar to that in the Japan and Russia 

treaties. We have expanded upon and 

added additional clarification in the 

section ‘‘Is the rule consistent with the 

MBTA?’’ discussing compatibility of 

this rule with the MBTA and the four 

treaties. 

Authorization of Take Under § 21.15(a) 

Comment: The Department of Defense 

should avoid take of migratory birds by 

avoiding areas inhabited by migratory 

birds including restricting construction 

and active use of airfields in the vicinity 

of wildlife refuges, prohibiting military 

operations over wildlife refuges or 

sensitive migratory bird habitat areas, 

and avoiding areas where migratory 

birds nest, breed, rest, and feed. 

Service Response: Military lands often 

support a diversity of habitats and their 

associated species, including migratory 

birds; thus it would be difficult for the 

Armed Forces to completely avoid areas 

inhabited by birds or other wildlife 

species. When determining the location 

for a new installation, such as an 

airfield, the applicable Armed Force 

must prepare environmental 

documentation in accordance with the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) (NEPA) that gives 

due consideration to the impacts of the 

proposal on the environment, including 

migratory birds. With respect to wildlife 

refuges, Congress in the 2000 

amendments to the National Wildlife 

Refuge System Administration Act 

noted specifically that the provisions of 

the Act relating to determinations of the 

compatibility of a use would not apply 

to overflights above a refuge (Pub. L. 

106–580; December 29, 2000). 

Nevertheless, as noted in this rule, the 

Armed Forces have made significant 

investments in acquiring data on the 

distribution of bird populations and 

identification of migration routes, as 

well as the use of military lands for 

breeding, stopover sites, and overwintering areas, to protect and conserve 

these areas. The Armed Forces actively 

utilize radar ornithology to plan new 

construction and testing and training 

operations in areas and times of least 

constraints. The Armed Forces also have 

a strong interest in avoiding bird/aircraft 

conflicts and use this type of 

information to assist range planners in 

selecting training times when bird 

activity is low. 

In accordance with the Sikes Act 

(included in Pub. L. 105–85), the 

Department of Defense must provide for 

the conservation and rehabilitation of 

natural resources on military 

installations. Thus, potential conflicts 

with natural resources, including 

migratory birds, should be addressed in 

Integrated Resource Management Plans 

(INRMP), where applicable. Although 

the Sikes Act does not apply to the 

Coast Guard, they are also starting to 

encourage applicable bases to develop 

INRMPs. 

Comment: Provision should be 

included that the Department of Defense 

cannot ignore scientific evidence and 

proceed on a course of action where 

take is inevitable. 

Service Response: None of the four 

treaties strictly prohibit the taking of 

migratory birds without exception. 

Furthermore, the Service acknowledges 

that regardless of the entity 

implementing an activity, some birds 

may be killed even if all reasonable 

conservation measures are 

implemented. With the passage of the 

Authorization Act, Congress directed 

the Secretary to authorize incidental 

take by the Armed Forces. Thus, they 

will be allowed to take migratory birds 

as a result of military readiness 

activities, consistent with this rule. This 

rule, however, will continue to ensure 

conservation of migratory birds as it 

requires the Armed Forces to confer and 

cooperate with the Service to develop 

and implement conservation measures 

to minimize or mitigate adverse effects 

to migratory birds when scientific 

evidence indicates an action may result 

in a significant adverse effect on a 

population of a migratory bird species. 

As stated in the Principles and 

Standards section of this rule, the 

Armed Forces will use the best 

scientific data available to assess 

through the NEPA process, or other 

environmental requirements, the 

expected impact of proposed or ongoing 

military readiness activities on 

migratory bird species likely to occur in 

the action areas. 

Comment: The Department of Defense 

should not have the sole authority/ 

responsibility to determine whether the 

survival of the species is threatened, 

and only then initiate consultation with 

the Service. 

Service Response: We assume that, 

despite the commenter’s use of the term 

‘‘consultation’’, this is a reference to the 

requirement under § 21.15(a)(1) to 

‘‘confer and cooperate,’’ and not to the 

requirement of ‘‘consultation’’ under 

section 7 of the Endangered Species Act 

(ESA), 16 U.S.C. 1536. Section 

21.15(a)(1) does condition the 

requirement to ‘‘confer and cooperate’’

on a determination by the Armed Forces 

that a military readiness activity may 

result in a significant adverse effect on 

a population of a migratory birds 

species. However, we expect that the 

Armed Forces will notify the Service of 

any activity that even arguably triggers 

this requirement. In addition, putting 

aside the requirements of this 

regulation, the Armed Forces would, as 

a matter of course share such 

information in a number of 

circumstances. 

First, NEPA, and its regulations at 40 

CFR 1500–1508, require that Federal 

agencies prepare environmental impact 

statements for ‘‘major Federal actions 

significantly affecting the quality of the 

human environment.’’ These statements 

must include a detailed analysis of the 

impacts of an agency’s proposed action 

and any reasonable alternatives to that 

proposal. NEPA also requires the 

responsible Federal official to ‘‘consult 


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Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 8935 

with and obtain comments of any 

Federal agency which has jurisdiction 

by law or special expertise with respect 

to any environmental impact involved.’’

Second, the Sikes Act (16 U.S.C. 670a670o), as amended in 1997, requires the 

development of INRMPs by the 

Department of Defense that reflect the 

mutual agreement of the Department of 

Defense, the Service, and the 

appropriate State wildlife agency. The 

Sikes Act has provided the Service, as 

well as the public, with an opportunity 

to review natural resources management 

on military lands, including any major 

conflicts with migratory birds or their 

habitat. NEPA documentation is also 

completed on new or revised INRMPs. 

Department of Defense policy requires 

installations to review INRMPs annually 

in cooperation with the Service and 

State resource agencies. Annual reviews 

facilitate adaptive management by 

providing an opportunity for the parties 

to review the goals and objectives of the 

plans and to evaluate any new scientific 

information that indicates the potential 

for adverse impacts on population of a 

migratory bird species from ongoing (or 

new) military readiness activities. 

Third, if the military readiness 

activity may affect a species listed under 

the ESA, the Armed Forces would 

communicate with the Service to 

determine whether formal consultation 

is necessary under section 7 of the ESA. 

If, as a result these formal processes 

or by any other mechanism the Service 

obtains information which raise 

concerns about the impacts of military 

readiness on migratory bird 

populations, the Service can request 

additional information from the Armed 

Services. Under section 21.15(b)(2)(iii), 

failure to provide such information can 

form the basis for withdrawal of the 

authorization to take migratory birds. In 

any case, based on this information, the 

Service can, under appropriate 

circumstances, suspend or withdraw the 

authorization even if the Armed Forces 

do not themselves determine that a 

military readiness activity may result in 

a significant adverse effect on a 

population of a migratory bird species. 

Comment: The threshold for requiring 

the Department of Defense to confer 

with the Service when a ‘‘significant 

adverse effect on the sustainability of a 

population of migratory bird species of 

concern’’ is too high. This could allow 

significant damage to resources that 

could be avoided with criteria that are 

more stringent. 

Service Response: We agree. We have 

modified the threshold to ‘‘significant 

adverse effect on a population of 

migratory bird species.’’ The definitions 

of ‘‘population’’ and ‘‘significant 

adverse effect’’ have also been modified 

accordingly in this rule. 

Comment: The provision that the rule 

must be promulgated with the 

concurrence of the Secretary of Defense 

requires the regulator to get permission 

of the regulated agency. 

Service Response: The 2003 Defense 

Authorization Act required that the 

regulation be developed with the 

concurrence of the Secretary of Defense. 

However, as indicated in § 21.15(b), we 

have the authority to withdraw 

authorization if it is determined that a 

proposed military readiness activity 

may be in violation of any of the 

migratory bird treaties or otherwise is 

not being implemented in accordance 

with this regulation. 

Comment: Encourage more emphasis 

on upfront planning and evaluation of 

minimum-impact alternatives to foster 

more opportunities to avoid or mitigate 

impacts. 

Service Response: As stated in this 

rule, the Department of Defense 

currently incorporates a variety of 

conservation measures into their INRMP 

documents to address migratory bird 

conservation. Additional measures will 

be developed in the future with all the 

Armed Forces in coordination with the 

Service and implemented where 

necessary to avoid, minimize, or 

mitigate significant adverse effects on 

migratory bird populations. This rule 

also indicates the Armed Forces shall 

engage in early planning and scoping 

and involve agencies with special 

expertise in the matters related to the 

potential impacts of a proposed action. 

Comment: The proposed rule grants 

the Department of Defense greater 

authority to take and kill migratory 

birds than authorized in the Defense 

Authorization Act, which is the only 

statutory authority for the proposed rule 

and requires that the Department of 

Defense minimize and mitigate impacts 

to migratory birds. 

Service Response: We do not agree 

that the rule provides greater authority 

to take birds than authorized in the 

Defense Authorization Act. What this 

rule does is provide clarity regarding the 

processes the Armed Forces are required 

to initiate to minimize and mitigate 

adverse impacts of authorized military 

readiness activities on migratory birds 

while ensuring compliance with the 

migratory bird treaties and meeting the 

Secretary’s obligations under Section 

704 of the MBTA. 

Comment: The rule should require 

mitigation options be formally assessed 

and evaluated prior to undertaking the 

activity and that mitigation be 

commensurate with the extent of the 

impact. 

Service Response: We agree that 

mitigation can be very complex both 

from the perspective of replicating all 

the ecosystem components that a 

species needs to successfully survive 

and reproduce regardless of whether 

mitigation is ex-situ or in-situ. 

The Service’s Mitigation Policy (Fish 

and Wildlife Service Manual, 501 FW 2) 

is designed to assist the Service in the 

development of consistent and effective 

recommendations to protect and 

conserve valuable fish and wildlife 

resources to help ensure that mitigation 

be commensurate with the extent of the 

impact. 

In addition, as indicated in this rule, 

the Armed Forces will confer and 

cooperate with the Service to develop 

and implement conservation measures 

when an ongoing or proposed activity 

may have a significant adverse effect on 

a population of migratory bird species. 

The public, and the Service, also have 

the opportunity to review and comment 

on proposed military readiness 

activities in accordance with NEPA. 

Comment: Section 21.15(a) of the 

proposed regulation must be revised to 

provide a system of oversight by the 

Service both in determining whether 

Department of Defense military 

readiness activities would likely 

adversely impact a migratory bird 

population and in setting a timeline for 

the implementation of conservation 

measures. 

Service Response: As previously 

indicated, the Service and the public 

have the opportunity to review and 

comment on proposed military 

readiness activities in accordance with 

NEPA or other environmental review. 

Thus, we will be provided an 

opportunity to evaluate whether a 

proposed activity may have an adverse 

effect on migratory bird populations. 

Comment: Pursuant to authority 

granted by 10 U.S.C. 101 and 14 U.S.C. 

1, the U.S. Coast Guard is a branch of 

the armed forces of the USA at all times. 

Under this authority, the Coast Guard 

engages in military readiness activities. 

Furthermore, under the definition of 

‘‘Secretary of Defense,’’ the Department 

of Homeland Security is included with 

respect to military readiness activities of 

the U.S. Coast Guard. The rule should 

be revised accordingly to reflect this. 

Service Response: Section 315 of the 

Authorization Act provides for the 

Secretary ‘‘to prescribe regulations to 

exempt the Armed Forces for the 

incidental taking of migratory birds 

during military readiness activities 

authorized by the Secretary of Defense 

or the Secretary of the military 

department concerned.’’ We agree that 


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‘‘Armed Forces’’ includes the Coast 

Guard. 

Comment: In order for potential 

impacts of the implementation of this 

rule to be effectively analyzed, the rule 

should not be categorically excluded. A 

full NEPA analysis should be conducted 

for the rule. 

Service Response: Because of the 

broad spectrum of activities, activity 

locations, habitat types, and migratory 

birds potentially present that may be 

affected by this rule, it is not foreseeable 

or reasonable to anticipate all the 

potential impacts in a meaningful 

manner of military readiness activities 

conducted by the Armed Forces on the 

affected environment; thus it is 

premature to examine potential impacts 

of the rule in accordance with NEPA. 

We have determined that any 

environmental analysis of the rule 

would be too broad, speculative, and 

conjectural. 

Part 516 Departmental Manual 2.3 A 

(National Environmental Policy Act Part 

1508.4) allows an agency (Bureau) in the 

Department of Interior to determine if 

an action is categorically excluded from 

NEPA. We have made the determination 

that the rule is categorically excluded in 

accordance with 516 Departmental 

Manual 2, Appendix 1.10. This 

determination does not diminish the 

responsibility of the Armed Forces to 

comply with NEPA. Whenever the 

Armed Forces propose to undertake new 

military readiness activities or to adopt 

a new, or materially revised, INRMP 

where migratory bird species may be 

affected, the Armed Forces invite the 

Service to comment as an agency with 

‘‘jurisdiction by law or special 

expertise’’ upon their NEPA analysis. In 

addition, if the potential for significant 

effects on migratory birds makes it 

appropriate, the Armed Forces may 

invite the Service to participate as a 

cooperating agency in the preparation of 

their NEPA analysis. Moreover, 

authorization under this rule requires 

that if a proposed military readiness 

activity may result in a significant 

adverse impact on a population of 

migratory bird species, the Armed 

Forces must confer and cooperate with 

the Service to develop and implement 

appropriate measures to minimize or 

mitigate these effects. The 

environmental consequences of the 

proposed military readiness activity, as 

well as the potential of any such 

measures to reduce the adverse impacts 

of the proposed activity, would be 

covered in NEPA documentation 

prepared for the proposed action. 

Comment: Section 21.15(a) of the 

proposed regulation is unclear as to who 

is to determine that ongoing or proposed 

activities are likely to result in 

significant adverse effects. 

Service Response: We have revised 

§ 21.15(a) to clarify that this 

responsibility initially lies with the 

action proponent, i.e., the Armed 

Forces. Just as the Armed Forces make 

the initial determination that 

consultation is required under similar 

statutes, such as the Endangered Species 

Act (16 U.S.C. 1531 et seq.) (ESA) or the 

National Historic Preservation Act (16 

U.S.C. 470), the action proponent will 

consider the likely effects of its 

proposed action and whether such 

effects require that it confer with the 

Service to develop and implement 

appropriate conservation measures to 

minimize or mitigate potential 

significant adverse effects. Where 

significant adverse impacts are likely, 

existing requirements under NEPA for 

federal agencies to prepare 

environmental documentation will 

ensure that both the public and the 

Service have an opportunity to review a 

proposed action and the Armed Force’s 

determination with respect to migratory 

birds. 

The Service and State wildlife 

agencies (and the general public if plan 

revisions are proposed) also have an 

opportunity to review the Department of 

Defense’s management of installation 

natural resources, including the impacts 

of land use on such resources, during 

the quintennial review of INRMPs for 

Department of Defense lands. 

Consultation under the Endangered 

Species Act offers yet another 

opportunity for the Service to provide 

input on the potential effects of a 

proposed military readiness activity on 

federally listed migratory birds. 

Comment: The document uses both 

the terms ‘‘may’’ affect migratory birds 

and ‘‘likely’’ to affect migratory birds. 

‘‘May’’ should be used to be consistent 

with the NEPA threshold for impacts on 

the environment. 

Service Response: The Service has 

intentionally established different 

standards for when the Armed Forces 

are required to confer with the Service 

and for when we may propose 

withdrawal of authorization. We have 

established a broad standard for 

triggering when the Armed Forces must 

notify the Service of potential adverse 

effects on migratory birds. We agree that 

requiring the Armed Forces to confer 

with the Service when applicable 

activities ‘‘may’’ result in a significant 

adverse effect is consistent with the 

analysis threshold utilized in NEPA. 

The Secretary determined that the more 

restrictive threshold of suspending or 

withdrawing authorization was 

warranted when a military readiness 

activity likely would not be compatible 

with one or more of the treaties or is 

likely to result in a significant adverse 

effect on a migratory bird population. 

Withdrawal of Take Authorization 

§ 21.15(b) 

Comment: The Department of Defense 

is given too much decision power in the 

rule. Concern was expressed that the 

final decision regarding whether a 

military readiness activity is authorized 

or not is made by political appointees 

rather than unbiased career employees. 

Service Response: Our political 

system is based upon a structure 

whereby policy decisions are made by 

political appointees rather than career 

employees. To address what may be 

perceived as too much power by the 

Armed Forces, it is the Secretary of the 

Interior who has, and retains, the final 

determination regarding whether an 

activity is authorized under the MBTA, 

not the Secretary of Defense. 

Comment: The rule should require 

sufficient monitoring to detect 

significant impacts and provide for 

diligent oversight by the Department of 

the Interior to head off problems well 

before jeopardy is near and withdrawal 

of authorization is suspended or 

proposed to be withdrawn. 

Service Response: We concur that 

monitoring can play a key role in 

providing valuable data needed to 

evaluate potential impacts of activities, 

inform conservation decisions, and 

evaluate effectiveness of conservation 

measures. For monitoring to be relevant, 

it should focus on specific objectives, 

desired outcomes, key hypotheses, and 

conservation measures. As stated in 

§ 21.15(b)(2)(ii) of the rule, in instances 

where it is appropriate, the Armed 

Forces are required to ‘‘conduct 

mutually agreed upon monitoring to 

determine the effects of military 

readiness activity on migratory bird 

species and/or the efficacy of the 

conservation measures implemented by 

the Armed Forces.’’ This rule also states 

that the Armed Forces will consult with 

the Service to identify techniques and 

protocols to monitor impacts of military 

readiness activities. We have also added 

additional text clarifying the monitoring 

requirements of the Armed Forces. 

Comment: The procedure for 

withdrawal of the authority is so 

cumbersome and subject to so many 

exclusions as to make the withdrawal 

procedure non-functional. 

Service Response: We have clarified 

the procedures for when the Secretary 

may propose withdrawing authorization 

in § 21.15(b)(2), (4) and (5). 

Comment: The statutory language of 

the Defense Authorization Act says 


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nothing about requiring input from the 

State Department prior to suspending 

authorization. Thus, the rule needlessly 

goes beyond its statutory authority. 

Service response: In accordance with 

the MBTA (16 U.S.C. 704), the Secretary 

of the Interior has the authority to 

‘‘determine when, and to what extent, if 

at all, and by what means, it is 

compatible with the terms of the 

conventions to allow hunting, taking, 

capture, killing * * * and to adopt 

suitable regulations permitting and 

governing the same.’’ The Defense 

Authorization Act does not limit that 

authority. Requiring the input of the 

State Department is within the 

standards of § 704. 

Comment: The provision that the 

Secretary must seek the view of the 

Department of Defense prior to 

suspending authorization due to a 

violation with any of the treaties it 

affects permits the Department of 

Defense to itself determine its 

compliance with the migratory bird 

treaties. The statutory language of the 

Defense Authorization Act did not 

address this in any way. 

Service Response: Section 21.15(b)(1) 

of this regulation provides that the 

Secretary retains the discretion to make 

the ultimate determination that 

incidental take of migratory birds during 

a specific military readiness activity 

would be incompatible with the treaties. 

Although the Defense Authorization Act 

required the Secretary to promulgate a 

regulation, it did not mandate the 

specific text or all of the conditions in 

this regulation. This regulation is 

consistent with the Defense 

Authorization Act as well as with 16 

U.S.C. 704. Moreover, seeking the views 

of the Armed Forces is appropriate 

given the possible impacts that 

suspension of the take authorization 

could have on national security. 

Similarly, consulting with the State 

Department on issues of treaty 

interpretation is appropriate because of 

the State Department’s expertise and 

authority in this area as well as its 

responsibility for maintaining the 

relationship of the United States with its 

treaty partners. 

Comment: The Secretary should not 

have unilateral power to suspend or 

withdraw take authorization as the 

Defense Authorization Act states the 

Secretary must exercise authority with 

the concurrence of the Secretary of 

Defense. 

Service Response: In accordance with 

§ 315(d)(1) and (2) of the Authorization 

Act, the regulation ‘‘to exempt the 

Armed Forces for the incidental take of 

migratory birds during military 

readiness activities’’ shall be developed 

by the Secretary of the Interior with the 

concurrence of the Secretary of Defense. 

However, the Defense Authorization Act 

does not restrict or limit our authority 

in 16 U.S.C. 704 and 712 relative to 

administering and enforcing the MBTA 

and complying with the four migratory 

bird treaties. 

Definitions § 21.3 

Comment: Incidental take is not 

defined in the rule or the Defense 

Authorization Act. Concern was 

expressed that the Department of 

Defense being authorized to take 

migratory birds incidental to military 

readiness activities without 

‘‘incidental’’ being defined will result in 

the Department of Defense reading this 

as the ability to actively kill migratory 

birds and destroy their habitat in 

anticipation of the potential for such 

problems. 

Service Response: Current regulations 

authorize permits for take of migratory 

birds for activities such as scientific 

research, education, and depredation 

control (50 CFR parts 13, 21 and 22). 

However, these regulations do not 

expressly address the issuance of 

permits for incidental take. ‘‘Incidental 

take of migratory birds’’ is not defined 

under the MBTA or in any subsequent 

regulation, and the Service does not 

anticipate having a regulatory definition 

for ‘‘incidental take’’ in the short term. 

Neither the MBTA, the Defense 

Authorization Act, nor this rule 

authorize the take of migratory birds 

simply in anticipation of the potential 

for future problems, i.e., removing the 

potential source of problems before any 

conflicts may arise with military 

readiness activities. 

Comment: Blanket exemption for any 

and all military readiness activities 

should not be authorized. In particular, 

those activities that involve acquisition 

of new land and construction of 

facilities in sensitive migratory bird 

habitat areas should not be authorized. 

Authorization to take birds should only 

include those types of activities that are 

too time or mission-sensitive for 

thorough evaluation, and where 

incidental take is unavoidable. 

Service Response: As defined in the 

2003 Defense Authorization Act, 

military readiness activities include all 

training and operations of the Armed 

Forces that relate to combat, and the 

adequate and realistic testing of military 

equipment, vehicles, weapons, and 

sensors for proper operation and 

suitability for combat use. Military 

readiness does not include (a) routine 

operation of installation operating 

support functions, such as: 

administrative offices; military 

exchanges; commissaries; water 

treatment facilities; storage facilities; 

schools; housing; motor pools; 

laundries; morale, welfare, and 

recreation activities; shops; and mess 

halls, (b) operation of industrial 

activities, or (c) construction or 

demolition of facilities listed above. 

Acquisition of lands by the Armed 

Forces is not covered by this 

authorization as the acquisition itself 

does not take birds even when the land 

is being acquired for implementing 

future military readiness activities. In 

accordance with NEPA, environmental 

analysis of any major Federal agency 

action, which may include land 

acquisition and future proposed 

activities on these lands, must be 

addressed prior to the action occurring. 

Likewise, construction of facilities in 

sensitive migratory bird habitat would 

be addressed through NEPA. 

Comment: The rule covers all military 

branches of service and includes 

contractors and agents. These should be 

clearly delineated in order to minimize 

the number of exempt entities. 

Service Response: The rule applies to 

contractors only when such contractors 

are performing a military readiness 

activity in association with the Armed 

Forces—i.e., the contractors are 

performing a federal function. For 

example, a contractor training troops on 

the operation of a new weapons system 

or testing its interoperability with 

existing weapons systems would be 

covered. The regulation does not cover 

routine contractor testing performed at 

an industrial activity that is privately 

owned and operated. 

Comment: The Defense Authorization 

Act does not limit applicability of 

minimization and mitigation measures 

to just ‘‘species of concern’’ but applies 

to all ‘‘affected species of migratory 

birds.’’ In addition, concern was 

expressed that this level of threshold 

could result in avoidable impacts to 

species that are not included in the 

‘‘species of concern lists’’ but are 

nevertheless valuable public resources. 

Service Response: We agree that the 

Defense Authorization Act is not 

specifically limited to species of 

concern, nor did we envision that the 

rule prevents the Armed Forces from 

addressing adverse impacts on all 

affected species of migratory birds 

through the NEPA process, including 

those that are locally endemic or 

otherwise have limited distribution 

within a State. The rule has been 

modified by requiring the Armed Forces 

to confer with the Service when they 

determine an action may result in a 

significant adverse effect on the 


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population of any migratory bird 

species. 

Comment: Use of population status at 

the Bird Conservation Region (BCR) 

level as a criterion for action could 

reduce consideration of locally 

important bird resources, concentrations 

of birds and special habitats, and 

populations that do not coincide closely 

with BCRs. 

Service Response: We have revised 

the definition of population so that it is 

not based upon species distribution or 

occurrence within a Bird Conservation 

Region and thus eliminates the concerns 

expressed above. As used in the rule, a 

population is defined as ‘‘a group of 

distinct, coexisting (conspecific) 

individuals of a single species, whose 

breeding site fidelity, migration routes, 

and wintering areas are temporally and 

spatially stable, sufficiently distinct 

geographically (at some time of the 

year), and adequately described so that 

the population can be effectively 

monitored to discern changes in its 

status.’’

What constitutes a population for the 

purposes of determining potential 

effects of military readiness activities 

will be scientifically based. A 

population could be defined as one that 

occurs spatially across a geographically 

broad area, such as the Western Atlantic 

red knot population that migrates along 

the Atlantic seaboard, to a more 

geographically limited species, such as 

breeding population of Bicknell’s thrush 

whose breeding range is limited to 

mountain tops in the northeastern U.S. 

and southeastern Canada. When 

requested, the Service will provide 

technical assistance to the Armed 

Forces in identifying specific 

populations of migratory bird species 

that may be affected by a military 

readiness activity. 

Comment: The definition of 

conservation measure does not 

adequately recognize international 

treaty obligations and the right of the 

Secretary of the Interior to withdraw 

take authorization should the treaties be 

violated. In the definitions, after the 

words ‘‘while allowing for completion 

of the action in a timely manner,’’ insert 

‘‘if such action would be consistent with 

the international treaties underlying the 

MBTA.’’

Service Response: If conservation 

measures implemented by the Armed 

Forces in accordance with the rule are 

not sufficient to render the action 

compliant with the treaties, the 

Secretary will suspend the 

authorization. Failure to implement 

conservation measures is not the sole 

criterion for proposing withdrawal. 

Comment: ‘‘Conservation measures’’

is defined to include monitoring when 

it has the potential to produce data 

relevant to substantiating impacts, 

validating effectiveness of mitigation, or 

providing other pertinent information. 

However, in the absence of a monitoring 

requirement, this provision is 

unworkable. 

Service Response: Monitoring is 

required in § 21.15(b)(ii) of the rule. 

This section indicates that the 

Department of Defense’s failure ‘‘to 

conduct mutually agreed upon 

monitoring to determine the effects of 

military readiness activity on migratory 

bird species and/or the efficacy of the 

conservation measures implemented by 

the Department of Defense’’ is potential 

cause for the Secretary to propose 

withdrawing authorization. However, as 

indicated in the response below, 

reference to monitoring has been 

removed from the definition of 

conservation measures. 

Comment: Monitoring should not be 

considered a conservation measure, 

rather it should be conducted separately 

and apart from any necessary and 

reasonable mitigation actions. 

Service Response: Although 

monitoring can play a key role in the 

continued growth of bird conservation 

by providing the information needed to 

inform conservation decisions and 

evaluate their effectiveness, we have 

removed it from the definition of 

conservation measures. 

Comment: The threshold of 

‘‘significant adverse effect on the 

sustainability of a population’’ is too 

high. 

Service Response: The threshold for 

when the Armed Forces will be required 

to confer with the Service and 

implement appropriate conservation 

measures has been modified to when a 

‘‘significant adverse effect on a 

population of migratory bird species’’

may result from an ongoing or proposed 

military readiness activity. The 

definition of significant adverse effect 

has also been accordingly revised in the 

rule. 

Comment: The rule has a different 

standard than what was indicated by 

Congress in the Defense Authorization 

Act. The Act indicates measures are to 

be identified that minimize and mitigate 

‘‘any adverse impacts’’ not just 

‘‘significant adverse effects.’’ The 

Service is inserting thresholds of both 

likelihood and significance that are not 

any way implied by the statute. 

Service Response: As indicated in 

Section 315(b) of the Authorization Act, 

the identification of measures to 

minimize and mitigate any adverse 

impacts of authorized military readiness 

activities pertains to the period of 

interim authority. The standard for 

authorization of take is established by 

the Secretary’s authority under § 704 of 

the MBTA, whereby in exercising this 

authority he/she may prescribe 

regulations that exempt the Armed 

Forces for the incidental taking of 

migratory birds during military 

readiness activities. As indicated in the 

rule, the Secretary established 

thresholds for granting authority to 

incidentally take migratory birds. For 

those military readiness activities that 

would not have a significant adverse 

effect on migratory bird species 

populations take is authorized without 

conferring with the Service, subject to 

the withdrawal provision of 

§ 21.15(b)(1). If a proposed or ongoing 

activity may result in a significant 

adverse effect, the Armed Forces must 

confer and cooperate with the Service. 

Take authorization would be suspended 

or withdrawn only when a military 

readiness activity likely would not be 

compatible with one or more of the 

treaties or is likely to result in a 

significant adverse effect on a migratory 

bird population. 

Comment: Conservation measures that 

are project designs or mitigation 

activities should be changed from those 

that are ‘‘reasonable and feasible’’ to 

‘‘reasonable and necessary.’’ This will 

result in a conservation measure that is 

appropriate to its purpose and essential 

to conservation. 

Service Response: This revision has 

been made to the definition of 

conservation measures. 

Comment: ‘‘Conservation measures’’

fails to place any restrictions or 

requirements on the amount of time that 

the Department of Defense would be 

given to apply the mitigation actions. 

The phrase ‘‘over time’’ implicitly 

grants the Department of Defense the 

ability to ignore the need for immediate 

action to counter adverse impacts. 

Service Response: ‘‘Over time’’ was 

deleted from the definition. 

Supplementary Information Section 

Many comments were received on the 

Supplementary section of the proposed 

rule which did not pertain to any 

recommended revisions to § 21.15. 

These were taken into consideration in 

the final rule. 

Comment: Ambiguous terms such as 

‘‘should,’’ ‘‘encourage,’’ ‘‘anticipates,’’

etc., relative to Department of Defense 

activities contributing towards the 

conservation of migratory birds should 

be replaced with stronger terms such as 

‘‘require.’’

Service Response: The 

SUPPLEMENTARY INFORMATION text has no 


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regulatory force and thus use of stronger 

terms has no regulatory weight. 

However, this comment was given due 

consideration and several revisions 

were made to strengthen the measures 

the Armed Forces are currently 

undertaking to address migratory bird 

conservation. These terms are not 

applicable in the actual rule, and 

therefore, no revisions were made 

relative to the authorization in this 

regard. 

Comment: Integrated Natural 

Resources Management Plans (INRMPs) 

as informal mechanisms may not 

provide prompt and diligent efforts to 

minimize permitted take of birds. State 

wildlife agencies encourage more 

rigorous and thorough planning 

requirements and offer their 

considerable expertise and assistance. 

Service Response: The Sikes Act 

Improvement Act of 1997 (included in 

Pub. L. 105–85) requires the 

development and implementation of 

INRMPs for relevant Department of 

Defense installations and mandates that 

plans be prepared in cooperation with 

the Service and State fish and wildlife 

agencies. The purpose of INRMPs is to 

plan natural resource management 

activities within the capabilities of the 

biological setting to support military 

training requirements. Although the 

Sikes Act does not apply to the Coast 

Guard, the Coast Guard is also starting 

to encourage their bases to address 

natural resource activities through 

INRMPs. The Service has been and 

continues to be committed to expanding 

partnerships with the Department of 

Defense. Updated Department of 

Defense guidance stresses that 

installations shall work in cooperation 

with the Service and States while 

developing or revising INRMPs. Each 

installation will invite annual feedback 

from the Service and States concerning 

how effectively the INRMP is being 

implemented. Installations have also 

established and maintain regular 

communications with the Service and 

State fish and wildlife agencies to 

address issues concerning natural 

resources management including 

migratory birds. 

The Sikes Act also offers 

opportunities beyond the INRMP 

process for States and the Service to 

offer their expertise and assistance on 

military lands and with respect to 

migratory birds. For example, under the 

Sikes Act, the Department of Defense 

can enter into cooperative agreements 

with the Service, States, and nonprofit 

organizations to benefit birds and other 

species. Programs such as the 

Chesapeake Bay Program, Coastal 

America, and Partners In Flight also 

offer opportunities to partner with 

States and to share information and 

advice. 

Comment: If the Service must rely on 

INRMPs for monitoring and mitigation 

of bird take, we recommend a 

requirement to complete, revise, and 

update plans to address bird monitoring 

and assessment of military readiness 

impacts and that migratory bird 

conservation activities receive adequate 

funding. 

Service Response: The Sikes Act and 

Department of Defense guidance 

provide mechanisms to address 

emerging needs related to bird 

monitoring and assessment of military 

readiness impacts. The Sikes Act 

requires INRMPs to be reviewed, and 

revised as necessary, as to operation and 

effect by the parties (i.e., the Service and 

State resource agencies) on a regular 

basis, but not less often than every 5 

years. In October 2004, the Department 

of Defense issued supplemental 

guidance for implementation of the 

Sikes Act relating to INRMP reviews. 

Department of Defense policy requires 

installations to review INRMPs annually 

in cooperation with the Service and 

State resource agencies. Annual reviews 

facilitate adaptive management by 

providing an opportunity for the parties 

to review the goals and objectives of the 

plans and to establish a realistic 

schedule for undertaking proposed 

actions. During annual reviews of the 

INRMPs, the Department of Defense will 

also discuss with the Service 

conservation measures implemented 

and the effectiveness of these measures 

in avoiding, minimizing, or mitigating 

take of migratory birds. 

This rule relies on the Armed Forces 

utilizing the NEPA process to determine 

whether any ongoing or proposed 

military readiness activity is likely to 

result in a significant adverse effect on 

a population of a migratory bird species. 

The rule requires the Armed Forces to 

develop and implement appropriate 

conservation measures if a proposed 

action may have a significant adverse 

effect on a population of migratory bird 

species. To ensure that such 

conservation measures adequately 

address impacts to migratory birds, the 

rule also requires the Armed Forces to 

monitor the effects of such military 

readiness activities on migratory bird 

species taken during the military 

readiness activities at issue, and to 

retain records of these measures and 

monitoring data for 5 years from the 

date the Armed Forces commence their 

action. 

Comment: We do not believe that 

impacts addressed by this rule can be 

adequately monitored or remedied 

without commitment of more resources 

to gather new bird data, conduct 

additional efforts to monitor impacts, or 

spend more money. 

Service Response: Although the rule 

requires the Armed Forces to conduct 

mutually agreed upon monitoring to 

determine the effects of a military 

readiness activity on migratory bird 

species and the efficacy of the 

conservation measures implemented by 

the Armed Forces, we cannot require 

the Armed Forces to provide additional 

funding or resources towards 

monitoring. However, we do agree that 

monitoring is an important component 

of activities the Armed Forces undertake 

to address migratory bird conservation. 

We have expanded the monitoring 

discussion under ‘‘Rule Authorization’’

below. 

Comment: Concern was expressed 

that the proposed broad exemption will 

be perceived as precluding the need for 

full NEPA consideration for covered 

activities. 

Service Response: As stated in this 

rule, the Armed Forces will continue to 

be responsible for being in compliance 

with NEPA, and all other applicable 

regulations, and ensuring that whenever 

they propose to undertake new military 

readiness activities or to adopt a new, or 

materially revised, INRMP and 

migratory bird species may be affected, 

the Armed Forces invite the Service to 

comment as an agency with 

‘‘jurisdiction by law or special 

expertise’’ upon their NEPA analysis. In 

addition, if the potential for significant 

effects on migratory birds makes it 

appropriate, the Armed Forces may 

invite the Service to participate as a 

cooperating agency in the preparation of 

their NEPA analysis. Moreover, 

authorization under this rule requires 

that if a proposed military readiness 

activity may result in a significant 

adverse impact on a population of 

migratory bird species, the Armed 

Forces must confer and cooperate with 

the Service to develop and implement 

appropriate measures to minimize or 

mitigate these effects. The 

environmental consequences of the 

proposed military readiness activity, as 

well as the potential of any such 

measures to reduce the adverse effects 

of the proposed activity, would be 

covered in NEPA documentation 

prepared for the proposed action. 

Comment: The Department of Defense 

should be required to demonstrate that 

all ‘‘practicable’’ means of avoiding the 

‘‘take’’ of migratory birds have been 

considered prior to the implementation 

of a new readiness program or 

construction of a new installation. 


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Service Response: The Armed Forces 

will be addressing ‘‘take’’ in a variety of 

ways. As stated above, through the 

NEPA process, the environmental 

consequences of their proposed military 

readiness activities will be evaluated, as 

well as any measures to reduce take of 

migratory birds. In addition, the 

INRMPs currently incorporate 

conservation measures to address 

migratory bird conservation. The 

Service will continue to work with the 

Armed Forces to develop additional 

measures in the future. 

Comment: Nowhere does the rule 

mention how and when the Department 

of Defense will assess current, ongoing 

activities for which NEPA compliance is 

complete. The rule should be amended 

to require, within a specified time 

period of 90–120 days, a report by the 

Department of Defense to the Secretary 

on the impacts of their current military 

readiness activities on migratory birds. 

Service Response: As a preliminary 

matter, it is important to note that where 

NEPA compliance has been completed, 

that compliance should have included 

consideration of the impacts on 

migratory birds. Since the enactment of 

NEPA, the Service has been notified of, 

and provided the opportunity to 

comment on, proposed military 

readiness activities that have the 

potential for significant impacts on the 

environment, including significant 

impacts on migratory birds. 

Nevertheless, it is possible that ongoing 

military readiness activities might in the 

future be determined to meet the 

threshold for the requirement under 

§ 21.15(a)(1) to ‘‘confer and cooperate.’’

There are at least three mechanisms in 

place that require the Armed Forces to 

address environment impacts of ongoing 

activities for which NEPA is complete; 

supplementary statements under NEPA, 

INRMP reviews, and the monitoring 

requirements in the rule. 

In accordance with NEPA Part 1502.9, 

an agency shall prepare a supplement to 

either a draft or a final environmental 

impact statement whenever: (1) The 

agency makes substantial changes in the 

proposed action that are relevant to 

environmental concerns; or (2) the 

agency learns of significant new 

circumstances or information relevant to 

environmental concerns and bearing on 

the proposed action or its impacts. This 

rule relies on the Armed Forces to use 

the NEPA process to determine whether 

an ongoing military readiness activity 

may result in a significant adverse effect 

on a population of a migratory bird 

species. 

The Sikes Act (16 U.S.C. 670a–670o), 

enacted in 1960, has required 

cooperation among the Department of 

Defense, the Service, and State wildlife 

agencies. The 1997 amendments to the 

Sikes Act require the development of 

INRMPs that reflect the mutual 

agreement of the Department of Defense, 

the Service, and the appropriate State 

wildlife agency. The Sikes Act provides 

the Service, as well as the public, an 

opportunity to review natural resources 

management on military lands, 

including any potential effects on 

migratory birds or their habitat. NEPA 

documentation is prepared to support 

new or revised INRMPs. Department of 

Defense policy requires installations to 

review INRMPs annually in cooperation 

with the Service and State resource 

agencies. Annual reviews facilitate 

adaptive management by providing an 

opportunity for the parties to review the 

goals and objectives of the plans and to 

evaluate any new scientific information 

that indicates the potential for adverse 

impacts on migratory birds from new or 

ongoing military readiness activities. In 

addition, during annual INRMP reviews, 

the Department of Defense, the Service 

and the State resources agency evaluate 

the conservation measures implemented 

and the effectiveness of these measures 

in avoiding, minimizing, or mitigating 

take of migratory birds. 

This rule requires the Armed Forces 

to develop and implement appropriate 

conservation measures if a proposed 

action may have a significant adverse 

effect on a population of migratory bird 

species. When conservation measures 

implemented in accordance with 

§ 21.15(a)(1) require monitoring, the 

Armed Forces must retain records of 

these measures and monitoring data for 

5 years from the date the Armed Forces 

commence their action. 

Comment: We disagree with the 

interpretation of the statute that 

Congress ‘‘signaled that the Department 

of Defense should give appropriate 

consideration to the protection of 

migratory birds when planning and 

executing military readiness activities, 

but not at the expense of diminishing 

the effectiveness of such activities.’’

This suggests a diminishment of 

protection for migratory birds. It was 

Congress’s intent that the Department of 

Defense should not be forced to halt 

these activities but rather should modify 

them to minimize impacts, or, if such 

activities cannot be practicably altered 

to minimize impacts, that mitigation 

measures must be in place to ensure 

conservation of migratory birds. 

Service Response: This rule will not 

diminish the protection of migratory 

birds. Rather, by requiring the Armed 

Forces to confer with the Service to 

develop and implement conservation 

measures when a military readiness 

activity may significantly affect a 

population of a migratory bird species, 

a greater benefit to birds will result than 

the current status operandi. Increased 

coordination and technical assistance 

between the Service and the Armed 

Forces will reduce the number of 

migratory birds that are incidentally 

taken as a result of military readiness 

activities. 

Measures Taken by the Armed Forces 

To Minimize and Mitigate Takes of 

Migratory Birds 

As the basis for this rule, under the 

authority of the MBTA and in 

accordance with Section 315 of the 

Authorization Act, the Armed Forces 

will consult with the Service to identify 

measures to minimize and mitigate 

adverse impacts of authorized military 

readiness activities on migratory birds 

and to identify techniques and protocols 

to monitor impacts of such activities. 

The inventory, avoidance, habitat 

enhancement, partnerships, and 

monitoring efforts described below 

illustrate the efforts currently 

undertaken by the Armed Forces to 

minimize or mitigate adverse impacts to 

migratory birds from testing and 

training activities to maintain a ready 

defense. Additional conservation 

measures, designed to minimize and 

mitigate adverse impacts of authorized 

military readiness activities on affected 

migratory bird species, with emphasis 

on species of concern, will be developed 

in joint coordination with the Service 

when evaluation of specific military 

readiness activities indicates the need 

for additional measures. 

We have a long history of working 

with natural resources managers at 

Armed Forces installations through our 

Field Offices to develop and implement 

these conservation initiatives. Many of 

the conservation measures detailed 

below represent state-of-the-art 

techniques and practices to inventory, 

protect, and monitor migratory bird 

populations. In accordance with 

provisions of the Sikes Act, as amended, 

these conservation measures are 

detailed in Department of Defense 

INRMPs for specific installations and 

endorsed by the Service and State fish 

and wildlife agencies. Additional 

conservation measures may be 

incorporated into future revisions of the 

INRMPs if determined necessary during 

their quintennial review. 

Bird Conservation Planning. The 

Department of Defense prepares 

INRMPs for most Department of Defense 

installations. Under the Sikes Act, the 

Department of Defense must provide for 

the conservation and rehabilitation of 

natural resources on military 


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installations. To facilitate the program, 

the Secretary of Defense prepares and 

implements an INRMP for each military 

installation in the United States on 

which significant natural resources are 

found. The resulting plans must reflect 

the mutual agreement of the military 

installation, the Service, and the 

appropriate State fish and wildlife 

agency on conservation, protection, and 

management of fish and wildlife 

resources. The importance of a 

cooperative relationship among these 

parties is also stressed in Department of 

Defense and Service guidances 

concerning INRMP development and 

review. In accordance with the 

Department of Defense guidance, each 

installation will invite annual feedback 

from the Service and States concerning 

how effectively the INRMP is being 

implemented. Installations also 

maintain regular communications with 

the Service and State fish and wildlife 

agencies to address issues concerning 

natural resources management 

including migratory birds. Although the 

Sikes Act does not apply to the Coast 

Guard, they are also starting to 

encourage applicable bases to develop 

INRMPs. 

INRMPs incorporate conservation 

measures addressed in Regional or State 

Bird Conservation Plans to ensure that 

the Department of Defense does its part 

in landscape-level management efforts. 

INRMPs are a significant source of 

baseline conservation information and 

conservation initiatives used to develop 

NEPA documents for military readiness 

activities. This linkage helps to ensure 

that appropriate conservation measures 

are incorporated into mitigation actions, 

where needed, that will protect 

migratory birds and their habitats. 

To-date, over 370 INRMPs have been 

approved. Through cooperative 

planning in the development, review 

and revision of INRMPs, the Department 

of Defense, the Service and the States 

can effectively avoid or minimize 

adverse impacts on migratory bird 

populations. Through this process, the 

Service and the Department of Defense 

will continue to work together to design 

and develop monitoring surveys that 

effectively evaluate population trends 

and cumulative impacts on 

installations. 

The Fish and Wildlife Conservation 

Act of 1980, as amended in 1988, directs 

the Secretary of the Interior to ‘‘identify 

species, subspecies, and populations of 

all migratory non-game birds that, 

without additional conservation action, 

are likely to become candidates for 

listing under the Endangered Species 

Act of 1973.’’ This list is prepared and 

updated at 5-year intervals by the 

Service’s Division of Migratory Bird 

Management. The current list of the 

‘‘Birds of Conservation Concern’’ is 

available at http:// 

migratorybirds.fws.gov/reports/ 

bcc2002.pdf. 

‘‘Birds of Conservation Concern 2002’’

includes species that are of concern 

because of (a) documented or apparent 

population declines, (b) small or 

restricted populations, or (c) 

dependence on restricted or vulnerable 

habitats. It includes three distinct 

geographic scales: Bird Conservation 

Regions, Service Regions, and National. 

The Service Regions include the seven 

Service Regions plus the Hawaiian 

Islands and Puerto Rico/U.S. Virgin 

Islands. 

Bird Conservation Regions (BCRs), 

adopted by the North American Bird 

Conservation Initiative (NABCI), are the 

most basic geographical unit by which 

migratory birds are designated as birds 

of conservation concern. The BCR list 

includes certain species endemic to 

Hawaii, the Pacific Island territories, 

and the U.S. Caribbean Islands that are 

not protected by the MBTA, and thus 

are not subject to this rule. These 

species are clearly identified in the list. 

The complete BCR list contains 276 

species. NABCI is a coalition of U.S., 

Canadian, and Mexican governmental 

agencies and private organizations 

working together to establish an 

inclusive framework to facilitate 

regionally based, biologically driven, 

landscape-oriented bird conservation 

partnerships. A map of the NABCI BCRs 

can be viewed at http://www.nabcius.org. 

The comprehensive bird conservation 

plans, such as the North American 

Waterfowl Management Plan, the U.S. 

Shorebird Conservation Plan, Partners 

in Flight (PIF) Bird Conservation Plans, 

and the North American Waterbird 

Conservation Plan, are the result of 

coordinated partnership-based national 

and international initiatives dedicated 

to migratory bird conservation. Each of 

these initiatives has produced 

landscape-oriented conservation plans 

that lay out population goals and habitat 

objectives for birds. Additional 

information on these plans and their 

respective migratory bird conservation 

goals can be found at: 

North American Waterfowl 

Management Plan (http:// 

birdhabitat.fws.gov/NAWMP/ 

nawmphp.htm). 

North American Waterbird 

Conservation Plan (http:// 

www.waterbirdconservation.org). 

U.S. Shorebird Conservation Plan 

(http://shorebirdplan.fws.gov/). 

Partners in Flight (http:// 

www.partnersinflight.org). 

Conservation Partnerships. The 

Department of Defense has entered into 

a number of conservation partnerships 

with nonmilitary partners to improve 

habitats and protect avian species. In 

1991, the Department of Defense, 

through each of the military services, 

joined the PIF initiative. The 

Department of Defense developed a PIF 

Strategic Plan in 1994, and revised it in 

2002. The Department of Defense PIF 

program is recognized as a model 

conservation partnership program. 

Through the PIF initiative, the 

Department of Defense works in 

partnership with over 300 Federal and 

State agencies and nongovernmental 

organizations (NGOs) for the 

conservation of neotropical migratory 

and resident birds and enhancement of 

migratory bird survival. For example, 

bases have worked with NGOs to 

develop management plans that address 

such issues as grazing and the 

conversion of wastewater treatment 

ponds to wetlands and suitable habitat. 

Universities use Department of Defense 

lands for migratory bird research and, 

on occasion, re-establish nesting pairs to 

take advantage of an installation’s 

hospitable habitat. The Department of 

Defense PIF program tracks this research 

and provides links between 

complementary research on different 

installations and service branches. 

The Authorization Act included a 

provision that allows the Department of 

Defense to provide property at closed 

bases to conservation organizations for 

use as habitat and another provision 

that, in order to lessen problems of 

encroachment, allows the Department of 

Defense to purchase conservation 

easements on suitable property in 

partnership with other groups. Where 

utilized, these provisions will offer 

further conservation benefits to 

migratory birds. 

Bird Inventories. The most important 

factor in minimizing and mitigating 

takes of migratory birds is an 

understanding of when and where such 

takes are likely to occur. This means 

developing knowledge of migratory bird 

habits and life histories, including their 

migratory paths and stopovers as well as 

their feeding, breeding, and nesting 

habits. 

The Department of Defense 

implements bird inventories and 

monitoring programs in numerous ways. 

Some Department of Defense 

installations have developed 

partnerships with the Institute for Bird 

Populations to Establish Monitoring 

Avian Productivity and Survivorship 

(MAPS) stations. The major objective of 


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the MAPS program is to contribute to an 

integrated avian population monitoring 

system for North American land birds 

by providing annual regional indices 

and estimates for four populations and 

demographic parameters for select target 

species in seven different regions of 

North America. The MAPS methodology 

provides annual regional indices of 

adult population size and post-fledgling 

productivity from data on the numbers 

and proportions of young and adult 

birds captured; annual regional 

estimates of adult population size, adult 

survivorship, and recruitment into the 

adult population from capture-recapture 

data on adult birds; and additional 

annual estimates of adult population 

size from point-count data collected in 

the vicinity of MAPS stations. Without 

these critical data, it is difficult or 

impossible to account for observed 

population changes. The Department of 

Defense is helping to establish a 

network of MAPS stations in all seven 

biogeographical regions and build the 

program necessary to monitor 

neotropical migratory bird population 

changes nationwide. Approximately 

20% of the continental MAPS network 

involves military lands. 

Since the early 1940s, radar has been 

used to monitor bird migration. The 

newest weather surveillance radar, 

WSR–88D or NEXRAD (for Next 

Generation Radar), is ideal for studies of 

bird movements in the atmosphere. This 

sophisticated radar system can be used 

to map geographical areas of high bird 

activity (e.g., stopover, roosting and 

feeding, and colonial breeding areas). It 

also provides information on the 

quantity, general direction, and 

altitudinal distribution of birds aloft. 

Currently, the United States Air Force is 

using NEXRAD, via the U.S. Avian 

Hazard Advisory System (AHAS), to 

provide bird hazard advisories to all 

pilots, military and civilian, in an 

attempt to warn air traffic of significant 

bird activity. The information is 

publicly available for the contiguous 

United States on line at http:// 

www.usahas.com and will soon be 

available for the State of Alaska. 

NEXRAD information is critically 

important for the protection of habitats 

used by migratory birds during stopover 

periods. This information is vital to 

Department of Defense land managers 

who protect stopover areas on military 

land. The data is also particularly 

important to land managers of military 

air stations where bird/aircraft 

collisions threaten lives and cost 

millions of dollars in damages every 

year. The Department of Defense 

established a partnership with the 

Department of Biological Sciences at 

Clemson University to collect, analyze, 

and use the biological information from 

the NEXRAD network to identify 

important stopover habitat in relation to 

Department of Defense installations. 

Initial efforts were concentrated in the 

Southeast to complement existing radar 

data from the Gulf Coast. This 

partnership has enabled the collection 

and transfer of radar data from all 

NEXRAD sites, via modem, to one 

remote station at Clemson University, 

where the data can be archived and 

analyzed. 

The Department of Defense uses bird 

inventory and survey information in 

connection with the preparation of 

INRMPs. The Department of Defense 

also uses bird inventory and survey 

information when undertaking 

environmental analyses required under 

the NEPA. An environmental 

assessment or an environmental impact 

statement is used to determine the 

potential effects of any new, planned 

activity on natural resources, including 

migratory birds. 

The Department of Defense PIF 

program is currently developing a 

database of migratory bird species of 

concern that are likely to occur on each 

installation utilizing the Service’s 

published list of Birds of Conservation 

Concern (http://migratorybirds.fws.gov/ 

reports/bcc2002.pdf); priority migratory 

bird species documented in the 

comprehensive bird conservation plans 

(North American Waterbird 

Conservation Plan (http:// 

www.waterbirdconservation.org), United 

States Shorebird Conservation Plan 

(http://shorebirdplan.fws.gov), Partners 

in Flight Bird Conservation Plans 

(http://www.partnersinflight.org/); 

species or populations of waterfowl 

identified as high, or moderately high, 

continental priority in the North 

American Waterfowl Management Plan; 

listed threatened and endangered bird 

species in 50 CFR 17.11; and Migratory 

Bird Treaty Act-listed game birds below 

desired population sizes (http:// 

migratorybirds.fws.gov/reports/ 

reports.html). 

Avoidance. Avoidance is the most 

effective means of minimizing takes of 

migratory birds. Where practicable, the 

Department of Defense avoids 

potentially harmful use of nesting sites 

during breeding and nesting seasons 

and of resting sites on migratory 

pathways during migration seasons. 

Avoidance sometimes involves using 

one area of a range rather than another. 

On some sites in which bombing, 

strafing, or other activities involving the 

use of live military munitions could 

affect birds in the area, the Department 

of Defense may conduct an initial, 

benign sweep of the site to ensure that 

any migratory birds in the area are 

dispersed before live ordnance is used. 

Another tool used by the Department of 

Defense to deconflict flight training 

activities is the U.S. Air Force Bird 

Avoidance Model (BAM). This model 

places breeding bird and Christmas 

count data into a Geographic 

Information Systems model to assist 

range planners in selecting training 

times when bird activity is low. The 

BAM is available online at the http:// 

www.usahas.com Web site. 

Pesticide Reduction. Reducing or 

eliminating pesticide use also benefits 

migratory birds. The Armed Forces 

maintain an integrated pest management 

(IPM) program that is designed to 

reduce the use of pesticides to the 

minimum necessary. The Department of 

Defense policy requires all operations, 

activities, and installations worldwide 

to establish and maintain safe, effective, 

and environmentally sound IPM 

programs. IPM is defined as a planned 

program, incorporating continuous 

monitoring, education, record-keeping, 

and communication to prevent pests 

and disease vectors from causing 

unacceptable damage to operations, 

people, property, material, or the 

environment. IPM uses targeted, 

sustainable (i.e., effective, economical, 

and environmentally sound) methods, 

including education, habitat 

modification, biological control, genetic 

control, cultural control, mechanical 

control, physical control, regulatory 

control, and the judicious use of leasthazardous pesticides. Department of 

Defense policy mandates incorporation 

of sustainable IPM philosophy, 

strategies, and techniques in all aspects 

of Department of Defense pest 

management planning, training, and 

operations, including installation pestmanagement plans and other written 

guidance to reduce pesticide risk and 

prevent pollution. 

Habitat Conservation and 

Enhancement. Habitat conservation and 

enhancement generally involve 

improvements to existing habitat, the 

creation of new habitat for migratory 

birds, and enhancing degraded habitats. 

Improvements to existing habitat 

include wetland protection, 

maintenance and enhancement of forest 

buffers, elimination of feral animals (in 

particularly feral cats) that may be a 

threat to migratory birds, and 

elimination of invasive species that 

crowd out other species necessary to 

migratory bird survival. Examples of the 

latter include control and elimination of 

brown tree snake, Japanese 

honeysuckle, kudzu, and brown-headed 

cowbirds. 


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Efforts to eliminate invasive species 

are being undertaken in association with 

natural resources management under 

Sikes Act INRMPs. For example, at one 

site, grazing was reduced from more 

than 60,000 to about 23,000 acres, and 

has become a management tool to 

enhance the competitive advantage of 

native plants, especially perennial 

grasses. Special projects are under way 

on Department of Defense property to 

control exotic plants and to remove 

unused structures that occupy 

potentially valuable habitat or 

unnaturally increase predator 

populations. At some locations, native 

forest habitat is being reestablished. 

The preparation of INRMPs continues 

to offer opportunities to consider such 

land management measures as 

converting to uneven-age and/or other 

progressive forest management that 

enhances available habitat values, 

establishing native warm-season 

grasslands, maintaining and enhancing 

bottomland hardwood forests, and 

promoting positive water-use 

modifications to improve hydrology and 

avian habitat in arid areas. Department 

of Defense installations are active in 

promoting the use of nest boxes and, 

where appropriate, the use of 

communications towers for nesting. In 

addition, the Department of Defense PIF 

program has prepared fact sheets 

addressing such issues as 

communications towers and power 

lines, West Nile virus, wind energy 

development, the Important Bird Areas 

program, and bird/aircraft strike hazards 

(BASH). 

Other. At a few sites where the 

potential for migratory bird take is more 

severe, the Department of Defense has 

implemented extensive mitigation 

measures. In such instances, the 

responsible military service has taken 

practicable measures to minimize the 

impacts of its operations on protected 

migratory birds. Such measures include 

limiting the type and quantity of 

ordnance; limiting target areas and 

activities to places and times that 

protect key nesting areas for migratory 

birds; implementing fire-suppression 

programs or measures where wildfire 

can potentially damage nesting habitat; 

conducting environmental monitoring; 

and implementing mitigation measures, 

such as predator removal, on the site or 

nearby. 

Monitoring the Impacts of Military 

Readiness Activities on Migratory Birds 

The Authorization Act requires the 

Armed Forces to identify measures to 

monitor the impacts of military 

readiness activities on migratory birds. 

For military lands where migratory bird 

data may be lacking, monitoring may 

include the collection of baseline 

demographic, population, or habitatassociation data. Where feasible, the 

Armed Forces will conduct agreed-upon 

monitoring to determine the level of 

take from military readiness activities. 

Monitoring provides important data 

regarding the impacts of military 

readiness on migratory birds. It also 

contributes valuable information where 

data on species of migratory birds may 

be limited. In addition, monitoring data 

assists the Armed Forces in guiding 

their decisions regarding migratory bird 

conservation, particularly in developing 

or amending INRMPs. 

The Department of Defense monitors 

bird populations that may be affected by 

military readiness activities in 

numerous ways. In addition to the 

MAPS program discussed above, 

Department of Defense facilities 

participate in the Breeding Biology 

Research and Monitoring Database 

(BBIRD) program to study nesting 

success and habitat requirements for 

breeding birds. Many installations also 

engage in Christmas bird counts, 

migration counts (Point, Circle, Area, or 

Flyover Counts), standardized and/or 

customized breeding and wintering 

point counts, grassland-bird flush 

counts, NEXRAD (discussed above) and 

BIRDRAD studies, point count surveys, 

hawk watches, overflight surveys, and/ 

or rookery surveys. At sites where bird 

takes are a concern, such as Farallon de 

Medinilla in the Northern Marianas, the 

Department of Defense engages in more 

extensive monitoring, including 

overflight and rookery surveys several 

times a year, so that it can monitor 

trends in bird populations. 

The Department of Defense is not 

alone in monitoring the status of birds 

on its installations. Much of its 

monitoring is done through formal 

partnerships with conservation 

organizations. In addition, Watchable 

Wildlife programs provide opportunities 

for the public to provide feedback on 

the numbers and types of birds they 

have observed from viewing sites on 

Department of Defense installations. 

The Armed Forces can use clear 

evidence of bird takes, such as the sight 

of numerous dead or injured birds, as a 

signal that it should modify its 

activities, as practicable, to reduce the 

number of takes. With respect to the 

problem of bird/aircraft collisions, the 

Department of Defense undertakes 

intensive, bird-by-bird monitoring. The 

U.S. Air Force Safety Center’s Bird/ 

Wildlife Aircraft Strike Hazard team at 

Kirtland Air Force Base, NM, and the 

Navy Safety Center at Norfolk, VA, track 

aircraft/wildlife (bird and mammal) 

collisions because of the danger such 

collisions represent to pilots, crews, and 

aircraft. By focusing on local, regional, 

and seasonal populations and 

movements of birds, pilots and airport 

personnel have been better able to avoid 

collisions, in many cases by modifying 

those conditions at airfields that are 

attractive to birds. 

What Are the Provisions of the Rule? 

National Environmental Policy Act 

(NEPA) Considerations 

NEPA, and the Council on 

Environmental Quality’s (CEQ) NEPA 

implementing regulations at 40 CFR 

1500–1508, require that Federal 

agencies prepare environmental impact 

statements for ‘‘major Federal actions 

significantly affecting the quality of the 

human environment.’’ These statements 

must include a detailed analysis of the 

impacts of an agency’s proposed action 

and any reasonable alternatives to that 

proposal. NEPA requires the responsible 

Federal official to ‘‘consult with and 

obtain comments of any Federal agency 

which has jurisdiction by law or special 

expertise with respect to any 

environmental impact involved’’ (42 

U.S.C. 4332(2)(C)). NEPA also provides 

for public involvement in the decisionmaking process. The CEQ’s regulations 

implementing NEPA emphasize the 

integration of the NEPA process with 

the requirements of other environmental 

laws. The CEQ regulations at 40 CFR 

1500.2 state: ‘‘Federal agencies shall to 

the fullest extent possible * * * 

integrate the requirements of NEPA with 

other planning and environmental 

review procedures required by law or by 

agency practice so that all such 

procedures run concurrently rather than 

consecutively.’’ Regulations at 40 CFR 

1502.25 state: ‘‘To the fullest extent 

possible, agencies shall prepare draft 

environmental impact statements 

concurrently with and integrated with 

environmental impact analyses and 

related surveys and studies required by 

* * * other environmental review laws 

and executive orders.’’

In keeping with this emphasis, the 

rule relies on the Armed Forces utilizing 

the NEPA process to determine whether 

any ongoing or proposed military 

readiness activity is ‘‘likely to result in 

a significant adverse effect on the 

population of a migratory bird species.’’

More particularly, the Armed Forces 

prepare NEPA analyses whenever they 

propose to undertake a new military 

readiness activity that may significantly 

affect the quality of the human 

environment; propose to make a 

substantial change to an ongoing 

military readiness activity that is 


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relevant to environmental concerns; 

learn of significant new circumstances 

or information relevant to the 

environmental concerns bearing on an 

ongoing military readiness activity; or 

prepare or revise an INRMP covering an 

area used for military readiness 

activities. During the preparation of 

environmental impact statements 

analyzing the effects of proposed 

military readiness activities on 

migratory bird species, the Armed 

Forces consult with the Service as an 

agency with ‘‘jurisdiction by law and 

special expertise.’’ If the Armed Forces 

identify a significant adverse effect on 

migratory birds during the preparation 

of a NEPA analysis, this rule requires 

the Armed Forces to confer and 

cooperate with the Service to develop 

and implement appropriate 

conservation measures to minimize or 

mitigate any such significant adverse 

effects. The Armed Forces will continue 

to be responsible for ensuring that 

military readiness activities are 

implemented in accordance with all 

applicable statutes including NEPA and 

ESA. 

Endangered Species Act Consideration 

Section 7(a)(1) of the Endangered 

Species Act of 1973, as amended (16 

U.S.C. 1531 et seq.) (ESA), provides 

that, ‘‘[t]he Secretary [of the Interior] 

shall review other programs 

administered by him and utilize such 

programs in furtherance of the purposes 

of this Act.’’ Furthermore, section 

7(a)(2) requires all Federal agencies to 

insure that any action authorized, 

funded, or carried out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of critical habitat. 

We completed an Intra-Service 

Consultation on the proposed rule and 

we have determined that this rule to 

authorize take under the MBTA will 

have no effect on listed species. The 

rule does not authorize take under the 

ESA. If a military readiness activity may 

affect a listed species, the Armed Forces 

retains responsibility for consulting 

with the Service under section 7(a)(2) of 

the ESA. Similarly, if a military 

readiness activity is likely to jeopardize 

the continued existence of a species 

proposed for listing, the Armed Forces 

retain responsibility for conferring with 

the Service in accordance with section 

7(a)(4) of the ESA. 

Rule Authorization 

This rule authorizes the Armed Forces 

to take migratory birds as an incidental 

result of military readiness activities. 

The Armed Forces must continue to 

apply for and receive an MBTA permit 

for scientific collecting, control of birds 

causing damage to military property, or 

any other activity that is addressed by 

our existing permit regulations (50 CFR 

part 13, 21, 22). These activities may not 

be conducted under the authority of this 

rule. If any activity of the Armed Forces 

falls within the scope of our existing 

regulations, we will consider, when 

processing the application, the specific 

take requested as well as any other take 

authorized by this rule that may occur. 

Authorization of take under this rule 

applies to take of migratory birds 

incidental to military readiness 

activities, including (a) all training and 

operations of the Armed Forces that 

relate to combat, and (b) the adequate 

and realistic testing of military 

equipment, vehicles, weapons, and 

sensors for proper operation and 

suitability for combat use. Authorization 

of take does not apply to (a) routine 

operation of installation operating 

support functions, such as: 

administrative offices; military 

exchanges; commissaries; water 

treatment facilities; storage facilities; 

schools; housing; motor pools; 

laundries; morale, welfare, and 

recreation activities; shops; and mess 

halls, (b) operation of industrial 

activities, or (c) construction or 

demolition of facilities listed above. 

The authorization provided by this 

rule is subject to the military service 

conducting an otherwise lawful military 

readiness activity in compliance with 

the provisions of the rule. To ensure the 

Service maintains the ability to manage 

and conserve the resource, the Secretary 

retains the authority to withdraw or 

suspend authorization of take with 

respect to any specific military 

readiness activity under certain 

circumstances. 

With respect to a military readiness 

activity of the Armed Forces likely to 

take migratory birds, the rule authorizes 

take provided the Armed Forces are in 

compliance with the following 

requirement: 

If the Armed Forces determine that 

ongoing or proposed activities may result in 

a significant adverse effect on the population 

of a migratory bird species, the Armed Forces 

must confer and cooperate with the Service 

to develop and implement appropriate 

conservation measures to minimize or 

mitigate such significant adverse effects. 

The Armed Forces will continue to be 

responsible for addressing their 

activities other than military readiness 

through a MOU developed in 

accordance with Executive Order 13186, 

‘‘Responsibilities of Federal Agencies to 

Protect Migratory Birds,’’ January 10, 

2001. 

When Is Take Not Authorized? 

If a proposed or an ongoing action 

may have a significant adverse effect on 

a population of a migratory bird species, 

as that term is defined in Section 21.3, 

the Armed Forces must confer with the 

Service so that we may recommend 

conservation measures. In certain 

circumstances, the Secretary must 

suspend the take authorization with 

respect to a particular military readiness 

activity; in other circumstances, the 

Secretary has the discretion to initiate a 

process that may result in withdrawal. 

We will make every effort to work with 

the Armed Forces in advance of a 

potential determination to withdraw 

take authorization in order to resolve 

migratory bird take concerns and avoid 

withdrawal. With respect to 

discretionary withdrawal, the rule 

provides an elevation process if the 

Secretary of Defense or other national 

defense official appointed by the 

President and confirmed by the Senate 

determines that protection of national 

security requires continuation of the 

activity. 

The Secretary will immediately 

suspend authorization for take if 

continued authorization likely would 

not be compatible with any one of the 

migratory bird treaties. Withdrawal of 

authorization may be proposed if the 

Secretary determines that failure to do 

so is likely to result in a significant 

adverse effect on a population of a 

migratory bird species and one or more 

of the following circumstances apply: 

(A) The Armed Forces have not 

implemented conservation measures that (i) 

are directly related to protecting the 

migratory bird species affected by the 

proposed military readiness activity; (ii) 

would significantly reduce take of migratory 

birds species affected by the military 

readiness activity, (iii) are economically 

feasible, and (iv) do not limit the 

effectiveness of military readiness activities. 

(B) The Armed Forces fail to conduct 

mutually agreed upon monitoring to 

determine the effects of a military readiness 

activity on migratory bird species and/or the 

efficacy of the conservation measures 

implemented by the Armed Forces. 

(C) The Armed Forces have not provided 

reasonably available information that the 

Secretary has determined is necessary to 

evaluate whether withdrawal of take 

authorization for the specific military 

readiness activity is appropriate. 

The determination as to whether an 

immediate suspension of authorization 

is warranted (i.e., whether the action 

likely would not be compatible with a 

migratory bird treaty), or withdrawal of 

an authorization is proposed will be 

made independent of each other. 

Regardless of whether the circumstances 

of paragraphs (A) through (C) above 


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exist, there will be an immediate 

suspension if the Secretary determines, 

after seeking the views of the Secretary 

of Defense and after consulting with the 

Secretary of State, that incidental take of 

migratory birds during a specific 

military readiness activity likely would 

not be compatible with one or more of 

the migratory bird treaties. 

Proposed withdrawal of authorization 

will be provided in writing to the 

Secretary of Defense including the basis 

for the determination. The notice will 

also specify any conservation measures 

or other measures that would, if the 

Armed Forces agree to implement them, 

allow the Secretary to cancel the 

proposed withdrawal of authorization. 

Any take incidental to a military 

readiness activity subject to a proposed 

withdrawal of authorization will 

continue to be authorized by this 

regulation until the Secretary of the 

Interior, or his/her delegatee, makes a 

final determination on the withdrawal. 

The Secretary may, at his/her 

discretion, cancel a suspension or 

withdrawal of authorization at any time. 

A suspension may be cancelled in the 

event new information is provided that 

the proposed activity would be 

compatible with the migratory bird 

treaties. A proposed withdrawal may be 

cancelled if the Armed Forces modify 

the proposed activity to alleviate 

significant adverse effects on a 

population of a migratory bird species 

or the circumstances in paragraphs (A) 

through (C) above no longer exist. 

Cancellation of suspension or 

withdrawal of authorization becomes 

effective upon delivery of written notice 

from the Secretary to the Department of 

Defense. 

Request for Reconsideration 

In order to ensure that the action of 

the Secretary in not authorizing take 

does not result in significant harm to the 

Nation, any proposal to withdraw 

authorization under 50 CFR 21.15(b)(2) 

will be reconsidered by the Secretary or 

his/her delegatee who must be an 

official nominated by the President and 

confirmed by the Senate, if, within 45 

days of the notification with respect to 

a military readiness activity, the 

Secretary of Defense, or other national 

defense official, who also must be an 

official nominated by the President and 

confirmed by the Senate, determines 

that protection of the national security 

requires continuation of the action. 

Scope of Authorization 

The take authorization provided by 

the rule applies to military readiness 

activities of the Armed Forces, 

including those implemented through 

contractors of the Armed Forces and 

their agents. 

Principles and Standards 

As discussed above, the only 

condition applicable to the 

authorization under this rule is that the 

Armed Forces confer and cooperate 

with the Service if the Armed Forces 

determine that a proposed or an ongoing 

military readiness activity may result in 

a significant adverse effect on a 

population of a migratory bird species. 

To avoid this threshold from being 

reached, as well as to provide for 

migratory bird conservation, it is in the 

best interest of the Armed Forces to 

address potential migratory bird impacts 

from military readiness activities by 

adopting the following principles and 

standards. 

To proactively address migratory bird 

conservation, the Armed Forces should 

engage in early planning and scoping 

and involve agencies with special 

expertise in the matters relating to the 

potential impacts of a proposed action. 

When a proposed action by the Armed 

Forces related to military readiness may 

result in the incidental take of birds, the 

Armed Forces should contact the 

Service so we can assist the Armed 

Forces in addressing potential adverse 

impacts on birds and mitigating those 

impacts. As stated in this rule, the 

Armed Forces must confer with the 

Service when these actions may have a 

significant adverse effect on a 

population of a migratory bird species. 

The Armed Forces will, in close 

coordination with the Service, develop 

a list of conservation measures designed 

to minimize and mitigate potential 

adverse impacts of authorized military 

readiness activities on affected 

migratory bird species. A cooperative 

approach initiated early in the project 

planning process will have the greatest 

potential for successfully reducing or 

eliminating adverse impacts. Our 

recommendations will emphasize 

avoidance, minimization, and rectifying 

adverse impacts. The Armed Forces 

should consider obvious avoidance 

measures at the outset of project 

planning, such as siting projects to 

avoid important nesting areas or to 

avoid collisions of birds with structures, 

or timing projects to avoid peak 

breeding activity. In addition, models 

such as the AHAS and BAM should be 

used to avoid bird activity when 

planning flight training and range use. 

The Armed Forces will consider these 

conservation measures for incorporation 

in new NEPA analyses, INRMPs, INRMP 

revisions, and base comprehensive or 

master plans, whenever adverse impacts 

to migratory birds may result from 

proposed military readiness activities. 

‘‘Conservation measures’’ are project 

designs or mitigation activities that are 

technically and economically 

reasonable, and minimize the take of 

migratory birds and adverse impacts 

while allowing for completion of an 

action in a timely manner. When 

appropriate, the Armed Forces should 

adopt existing industry guidelines 

supported by the Service and developed 

to avoid or minimize take of migratory 

birds. We recognize that 

implementation of conservation 

measures will be subject to the 

availability of appropriations. 

The Armed Forces should promote 

the inclusion of comprehensive 

migratory bird management objectives 

from bird conservation plans into the 

planning documents of the Armed 

Forces. The bird conservation plans, 

available either from the Service’s 

Regional Offices or via the Internet, 

include: North American Waterfowl 

Management Plan, PIF, and the U.S. 

Shorebird Conservation Plan. The North 

American Waterbird Conservation Plan, 

the newest planning effort, addresses 

conservation of seabirds, wading birds, 

terns, gulls, and some marsh birds, and 

their habitats. The Armed Forces should 

also work collaboratively with partners 

to identify, protect, restore, and manage 

Important Bird Areas, Western 

Hemisphere Shorebird Reserve Network 

sites, and other significant bird sites that 

occur on Department of Defense lands. 

The Department of Defense should 

continue to work through the PIF 

program to incorporate bird habitat 

management efforts into INRMPs. 

In accordance with the Authorization 

Act and the 2002 revised Sikes Act 

guidelines, the annual review of 

INRMPs by the Department of Defense, 

in cooperation with the Service and 

State fish and wildlife agencies, will 

include monitoring results of any 

migratory bird conservation measures. 

The Armed Forces will use the best 

available databases to determine which 

migratory bird species are likely to 

occur in the area of proposed military 

readiness activities. This includes 

species likely to occur in the project 

area during all phases of the project. 

The Armed Forces will use the best 

scientific data available to assess, 

through the NEPA process or other 

environmental requirements, the 

expected impact of proposed or ongoing 

military readiness activities on 

migratory bird species likely to occur in 

action areas. Special consideration will 

be given to priority habitats, such as 

important nesting areas, migration stopover areas, and wintering habitats. 


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The Armed Forces will adopt, to the 

maximum extent practicable, 

conservation measures designed to 

minimize and mitigate any adverse 

impacts of authorized military readiness 

activities on affected migratory bird 

species. The term ‘‘to the maximum 

extent practicable’’ means without 

limiting the subject readiness activities 

in ways that compromise the 

effectiveness of those activities, and to 

the extent economically feasible. 

At the Department of Defense’s 

request, the Service will provide 

technical assistance in identifying the 

migratory bird species and determining 

those likely to be taken as a result of the 

proposed action, assessing impacts of 

the action on migratory bird species, 

and identifying appropriate 

conservation measures to mitigate 

adverse impacts. 

Is this rule consistent with the MBTA? 

Yes. This issue has two components. 

First is the question of whether the 

MBTA prohibits promulgation of 

regulations authorizing incidental take 

of migratory birds pursuant to military 

readiness activities. Second is the 

question of whether the details of this 

rule, individually and collectively, 

conflict with the MBTA in some way. 

The starting point for answering both 

questions is the fact that Sections 704 

and 712(2) of 16 U.S.C. provide us with 

broad authority to promulgate 

regulations allowing for the take of 

migratory birds when compatible with 

the terms of the migratory bird treaties. 

We find the take that is authorized in 

this rule is compatible with the terms of 

the treaties and consistent with the 

purposes of the treaties. 

Regarding the first question, whether 

any such regulations are permissible 

under the MBTA, Congress itself by 

passing the Authorization Act 

determined that such regulations are 

consistent with the MBTA and the 

underlying treaties by requiring us to 

promulgate such regulations. Even in 

the absence of the Authorization Act, 

regulations authorizing take incidental 

to military readiness activities are 

compatible with the terms of the 

treaties, and therefore authorized by the 

MBTA. 

The MBTA implements four treaties: 

a 1916 treaty with Great Britain on 

behalf of Canada that was substantially 

amended by a 1995 protocol; a 1936 

treaty with Mexico, amended by a 1997 

protocol; a 1972 treaty with Japan; and 

a 1978 treaty with the former Soviet 

Union. These international agreements 

recognize that migratory birds are 

important for a variety of purposes. 

They provide a food resource, 

insectivorous birds are useful to 

agriculture, they provide recreational 

benefits and are useful for scientific and 

educational purposes, and they are 

important for aesthetic, social, and 

spiritual purposes. Collectively, the 

treaties require the Unites States to 

provide mechanisms for protecting the 

birds and their habitats, and include 

special emphasis on protecting those 

birds that are in danger of extinction. 

The Japan and Russia treaties each 

call for implementing legislation that 

broadly prohibits the take of migratory 

birds. At the same time, those treaties 

allow the implementing legislation to 

include exceptions to the take 

prohibitions. The treaties recognize a 

variety of purposes for which take may 

be authorized, including scientific, 

educational, and propagative purposes; 

the protection of persons or property; 

and hunting during open seasons. The 

treaties also contemplate authorizing 

takings ‘‘for specific purposes not 

inconsistent with the objectives [or 

principles]’’ of the treaties. The Canada 

treaty, since adoption of the 1995 

Protocol, now includes similar 

language: ‘‘the taking of migratory birds 

may be allowed * * * for * * * 

specific purposes consistent with the 

conservation principles of this 

Convention.’’

In contrast, the take prohibitions 

required by the 1936 Mexico treaty have 

a narrower focus than the later treaties. 

The Mexico treaty is more clearly 

directed at stopping the indiscriminate 

killing of migratory birds by hunting 

and for commercial purposes through 

the establishment of closed seasons. In 

addition, even the language of the 

Mexico treaty that addresses the need 

for domestic regulation prohibiting 

certain activities with respect to 

migratory birds is subject to the 

objective ‘‘to satisfy the need set forth in 

* * * Article[I].’’ Article I provides: ‘‘In 

order that the species may not be 

exterminated, the high contracting 

parties declare that it is right and proper 

to protect birds denominated as 

migratory, whatever may be their origin, 

which in their movements live 

temporarily in the United States of 

America and the United Mexican States, 

by means of adequate methods which 

will permit, in so far as the respective 

high contracting parties may see fit, the 

utilization of said birds rationally for 

purposes of sport, food, commerce and 

industry.’’ Therefore, to the extent that 

the Mexico treaty is interpreted to have 

application to take beyond hunting and 

the like, that treaty must also be 

interpreted to allow the parties to 

authorize take that is consistent with the 

needs set forth in Article I. 

The broad language of the exceptions 

in the Japan, Russia, and Canada treaties 

clearly indicate that the intent of the 

parties was not to prohibit all take of 

migratory birds. Just as clearly, the take 

of large absolute numbers of birds (e.g. 

millions of birds taken in sport hunting) 

is allowable under the treaties, so long 

as that take is ultimately limited in a 

way that is consistent with the 

conservation principles and objectives 

of the treaties. Thus, allowing for take 

incidental to military readiness 

activities is, as a general matter, 

consistent with the conservation 

principles and objectives of all three of 

these treaties. 

The Mexico treaty does not require 

the parties to prohibit incidental take, 

and therefore allowing take incidental to 

military readiness activities cannot 

conflict with the terms of that treaty. 

And even if that treaty was read to 

apply more broadly, it is clear that the 

parties intended it only to require the 

rational regulation of take, not an 

absolute prohibition. Allowing take 

incidental to military readiness 

activities is consistent with the needs 

set forth in Article I. More broadly, we 

conclude that any incidental take 

allowed under the broad exceptions of 

the other three treaties is consistent 

with the Mexico treaty. 

Turning to the second question, 

whether this particular rule governing 

take incidental to military readiness 

activities is consistent with the treaties 

(and therefore the MBTA), the take that 

is authorized here is for a special 

purpose consistent with the principles 

and objectives of the treaties. The 

authorization allows take of birds only 

in limited instances—take that results 

from military readiness activities. 

Furthermore, the rule expressly requires 

the Armed Forces to develop 

conservation measures to minimize or 

mitigate impacts where such impacts 

may have a significant adverse effect on 

a population of a migratory bird species. 

Moreover, the Secretary must suspend 

the take authorization if he/she 

concludes that a specific military 

readiness activity likely would not be 

compatible with the migratory bird 

treaties and may withdraw the 

authorization if he/she is unable to 

obtain from Armed Forces the 

information needed to assure 

compliance. Thus, the authorization in 

this rule in effect incorporates a 

safeguard that provides for compliance 

with the requirements of the treaties. 

It is not entirely clear what level of 

effect on a migratory bird population 

would be required to constitute a 

violation of any of the treaties. It is 

clear, however, that the relatively minor 


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(at a population level) amount of take 

caused by military readiness activities is 

exceedingly unlikely to constitute a 

possible violation, even in the absence 

of any safeguards. When combined with 

the procedural safeguards set forth in 

this rule, there is no reasonable chance 

that a violation of the treaties will occur 

under this rule. In these circumstances, 

the take that would be authorized by 

this rule is thus compatible with the 

terms of the treaties and consistent with 

the purposes of those treaties. 

The rule’s process of broad, automatic 

authorization subject to withdrawal is 

particularly appropriate to military 

readiness activities. First, as noted 

above, we expect that military readiness 

activities will rarely, if ever, have the 

broad impact that would lead to a 

significant adverse effect on a 

population of migratory bird species, 

even absent the conservation measures 

that the Armed Forces undertake 

voluntarily or pursuant to another 

statute, such as the ESA. Second, the 

Armed Forces, like other federal 

agencies, have a special role in ensuring 

that the United States complies with its 

obligations under the four migratory 

bird treaties, as evidenced by the 

Migratory Bird Executive Order 13186 

(January 10, 2001). Like other Federal 

agencies, the Armed Forces strive not 

only to lessen detrimental effects of 

their actions on migratory birds but to 

actively promote the conservation of the 

resource and integrate conservation 

principles and practices into agency 

programs. Numerous internal programs 

and collaborative ventures among 

Federal agencies and non-Federal 

partners have contributed significantly 

to avian conservation. These efforts are 

grounded in the tenets of stewardship 

inherent in our treaty obligations. Third, 

given the importance of military 

readiness to national security, it is 

especially important not to create a 

complex process that, while perhaps 

useful in other contexts, might impede 

the timely carrying-out of military 

readiness activities. 

Why does the rule apply only to the 

Armed Forces? 

This rule was developed in 

accordance with the Authorization Act, 

which created an interim period, during 

which the prohibitions on incidental 

take of migratory birds would not apply 

to military readiness activities, and 

required the development of regulations 

authorizing the incidental take of 

migratory birds associated with military 

readiness activities. This rule carries out 

the mandates of the Authorization Act. 

This rule authorizes take resulting from 

otherwise lawful military readiness 

activities subject to certain limitations 

and subject to withdrawal of the 

authorization to ensure consistency 

with the provisions of the treaties. 

Required Determinations 

Regulatory Planning and Review (E.O. 

12866). In accordance with the criteria 

in Executive Order 12866, this rule is a 

significant regulatory action. OMB 

makes the final determination of 

significance under Executive Order 

12866. 

a. Analysis indicates this rule will not 

have an annual economic effect of $100 

million or adversely affect an economic 

sector, productivity, jobs, the 

environment, or other units of 

government. This rule is intended to 

benefit the Department of Defense, and 

all of its branches of the Armed Forces, 

by providing a mechanism to comply 

with the MBTA and the treaties. A full 

cost-benefit and economic analysis is 

not required. 

This rule will not affect small 

businesses or other segments of the 

private sector. It applies only to the 

Armed Forces. Thus, any expenditure 

under this rule will accrue only to the 

national defense agencies. Our current 

regulations allow us to permit take of 

migratory birds only for limited types of 

activities. This rule authorizes take 

resulting from the military readiness 

activities of the Armed Forces, provided 

the Armed Forces comply with certain 

requirements to minimize or mitigate 

significant adverse effects on a 

population of a migratory bird species. 

Analysis of the annual economic 

effect of this rule indicates that it will 

have de minimis effects for the 

following reasons. Without the rule, the 

Armed Forces could be subject to 

injunction by third parties via the APA 

for lack of authorization under the 

MBTA for incidental takes of migratory 

birds that might result from military 

readiness activities. This rule will 

enable the Armed Forces to alleviate 

costs associated with responding to 

litigation as well as costs associated 

with delays in military training. 

Furthermore, the rule is structured such 

that the Armed Forces are not required 

to apply for individual permits to 

authorize take for every individual 

military readiness activity. The take 

authorization is conveyed by this rule. 

This avoids potential costs associated 

with staff necessary to prepare and 

review applications for individual 

permits to authorize military readiness 

activities that may result in incidental 

take of migratory birds, and the costs 

that would be attendant to delay. 

The principal annual economic cost 

to the Armed Forces will likely be 

related to costs associated with 

developing and implementing 

conservation measures to minimize or 

mitigate impacts from military readiness 

activities that may have a significant 

adverse effect on a population of a 

migratory bird species. However, we 

anticipate that this threshold of 

potential effects on a population has a 

low probability of occurring. The Armed 

Forces are already obligated to comply 

with a host of other environmental laws, 

such as NEPA, which requires them to 

assess impacts of their military 

readiness activities on migratory birds, 

endangered and threatened species, and 

other wildlife. Most of the requirements 

of this rule will be subsumed by these 

existing requirements. 

With this rule, the Armed Forces will 

have a regulatory mechanism to enable 

the Armed Forces to effectively 

implement otherwise lawful military 

readiness activities. Without the rule, 

the Armed Forces might not be able to 

complete certain military readiness 

activities that could result in the take of 

migratory birds pending issuance of an 

MBTA take permit or resolution of any 

lawsuits. 

b. This rule will not create serious 

inconsistencies or otherwise interfere 

with the actions of the Armed Forces, 

including those other than military 

readiness. The Armed Forces must 

already comply with numerous 

environmental laws intended to 

minimize impacts to wildlife. 

c. This rule will not materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. This rule does not 

have anything to do with such 

programs. 

d. This rule raises novel legal or 

policy issues. This rule raises a novel 

policy issue in that it implements a new 

area of our program to carry out the 

MBTA. Under 50 CFR 21.27, the Service 

has the authority to issue special 

purpose permits for take that is 

otherwise outside the scope of the 

standard form permits of section 21. 

Special purpose permits may be issued 

for actions whereby take of migratory 

birds could result as an unintended 

consequence. However, the Service has 

previously issued such permits only in 

very limited circumstances. 

Regulatory Flexibility Act. For the 

reasons discussed under Regulatory 

Planning and Review above, I certify 

that this rule will not have a significant 

economic effect on a substantial number 

of small entities as defined under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). A final Regulatory Flexibility 

Analysis is not required. Accordingly, a 


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Small Entity Compliance Guide is not 

required. 

Small Business Regulatory 

Enforcement Fairness Act. This rule is 

not a major rule under 5 U.S.C. 804(2), 

the Small Business Regulatory 

Enforcement Fairness Act. This rule: 

a. Will not have an annual effect on 

the economy of $100 million or more. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. 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.): 

a. This rule will not ‘‘significantly or 

uniquely’’ affect small governments. A 

Small Government Agency Plan is not 

required. We have determined and 

certified pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502 et 

seq., that this rulemaking will not 

impose a cost of $100 million or more 

in any given year on local or State 

government or private entities. 

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. In accordance with 

Executive Order 12630, the rule does 

not have significant takings 

implications. A takings implication 

assessment is not required. The only 

effect of this rule is to authorize 

incidental takes of migratory birds by 

the Armed Forces as a result of military 

readiness activities. This rule will not 

result in the physical occupancy of 

property, the physical invasion of 

property, or the regulatory taking of any 

property. 

Federalism. In accordance with 

Executive Order 13132, and based on 

the discussions in Regulatory Planning 

and Review above, this rule will not 

have significant Federalism effects. A 

Federalism assessment is not required. 

Due to the migratory nature of certain 

species of birds, and given the Federal 

Government’s responsibility to 

implement the migratory bird treaties, 

Congress assigned the Federal 

Government responsibility over these 

species when it enacted the MBTA. This 

rule will not have a substantial direct 

effect on fiscal capacity, change the 

roles or responsibilities of Federal or 

State governments, or intrude on State 

policy or administration. 

Civil Justice Reform. In accordance 

with Executive Order 12988, the Office 

of the Solicitor has determined that this 

rule will not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. The intent of the rule is to 

relieve the Armed Forces and the 

judicial system from potential litigation 

resulting from potential take of 

migratory birds during military 

readiness activities. The Department of 

the Interior has certified to the Office of 

Management and Budget that this rule 

meets the applicable standards provided 

in Sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

Paperwork Reduction Act. This rule 

will not require any new information 

collections under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). Under the Paperwork Reduction 

Act, we do not need to seek Office of 

Management and Budget (OMB) 

approval to collect information from 

current Federal employees, military 

personnel, military reservists, and 

members of the National Guard in their 

professional capacities. Because this 

rule will newly enable us to collect 

information only from employees of the 

Armed Forces in their professional 

capacity, we do not need to seek OMB 

approval under the Paperwork 

Reduction Act. In other cases, Federal 

agencies may not conduct or sponsor, 

and members of the public are not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act. 

We have determined that this rule is 

categorically excluded under the 

Department of the Interior’s NEPA 

procedures in Part 516 of the 

Departmental Manual, Chapter 2, 

Appendix 1, Categorical Exclusion 1.10. 

Categorical Exclusion 1.10 applies to: 

‘‘policies, directives, regulations, and 

guidelines of an administrative, 

financial, legal, technical or procedural 

nature and whose environmental effects 

are too broad, speculative, or conjectural 

to lend themselves to meaningful 

analysis and will later be subject to the 

NEPA process, either collectively or 

case-by-case.’’

Military readiness activities of the 

Armed Forces occur across a broad 

geographic area covering a wide 

diversity of habitat types and potentially 

affecting a high diversity of migratory 

birds. Potential impacts on migratory 

birds will also vary spatially and 

temporally across the landscape. In 

addition, the specific type of military 

readiness activity will vary significantly 

among the Armed Forces, and the 

biological and geographical spectrum 

across which these activities may occur 

is potentially unique. Because of the 

broad spectrum of activities, their 

locations, habitat types, and migratory 

birds potentially present that may be 

affected by this rule, the potential 

impacts of military readiness activities 

conducted by the Armed Forces on the 

affected environment are too broad, 

speculative and conjectural to lend 

themselves to meaningful analysis. 

Thus, it is premature to examine 

potential impacts of the rule. 

However, this determination does not 

diminish the responsibility of the 

Armed Forces to comply with NEPA 

and individual military readiness 

activities at issue will be subject to the 

NEPA process by the Armed Forces to 

evaluate any environmental impacts. 

Whenever the Armed Forces propose to 

undertake new military readiness 

activities or to adopt a new, or 

materially revised, Integrated Natural 

Resources Management Plan, and 

migratory bird species may be affected, 

the Armed Forces will consult with and 

obtain comments from the Service, an 

agency with ‘‘jurisdiction by law or 

special expertise,’’ upon their NEPA 

analysis. The NEPA analysis will 

include cumulative effects where 

applicable. In addition, if the potential 

for significant effects on migratory birds 

makes it appropriate, the Armed Forces 

may invite the Service to participate as 

a cooperating agency in the preparation 

of their NEPA analysis. Moreover, 

authorization under this rule requires 

that if a proposed military readiness 

activity may result in a significant 

adverse impact on a population of 

migratory bird species, the Armed 

Forces must confer and cooperate with 

the Service to develop and implement 

appropriate measures to minimize or 

mitigate these effects. The 

environmental consequences of the 

proposed military readiness activity, as 

well as the potential of any such 

measures to reduce the adverse effects 

of the proposed activity, would be 

covered in NEPA documentation 

prepared for the proposed action. 

We have also determined that this 

authorization would not result in 

‘‘extraordinary circumstances’’ whereby 

actions cannot be categorically excluded 

pursuant to 516 DM 2.3A(2). This rule 

only authorizes the incidental take of 

migratory birds (with limitations) as a 

result of military readiness activities. 

We are not authorizing the Armed 

Forces to implement military readiness 

activities that may have significant 

adverse impacts on natural resources, 

have highly controversial environment 

effects, or result in significant 

cumulative impacts. If an individual 


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Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 8949 

military readiness action by the Armed 

Forces or the cumulative impacts of 

multiple activities may result in such an 

impact, then the Armed Forces will be 

responsible for completing an 

environmental analysis in accordance 

with NEPA. We are also not authorizing 

the take of a federally listed or proposed 

species. The Armed Forces must still 

comply with the Endangered Species 

Act. 

Furthermore, we expect that military 

readiness activities will rarely, if ever, 

have the broad impact that would lead 

to a significant adverse effect on a 

population of a migratory bird species, 

even absent the conservation measures 

that the Armed Forces undertakes 

voluntarily or pursuant to another 

statute. The Armed Forces also have an 

important role in ensuring that the 

United States complies with the four 

migratory bird treaties, the Endangered 

Species Act, and other applicable 

regulations for individual ongoing or 

proposed military readiness activities. 

A copy of the Service’s Categorical 

Exclusion determination is available 

upon request at the address indicated in 

the ADDRESSES section of this rule. 

Government-to-Government 

Relationship with Tribes. In accordance 

with the President’s memorandum of 

April 29, 1994, ‘‘Government-toGovernment Relations with Native 

American Tribal Governments’’ (59 FR 

22951), E.O. 13175, and 512 DM 2, we 

have evaluated possible effects on 

federally recognized Indian tribes and 

have determined that there are no 

effects. This rule applies only to 

military readiness activities carried out 

by the Armed Forces that take migratory 

birds. It will not interfere with the 

Tribes’ ability to manage themselves or 

their funds. 

Energy Effects. On May 18, 2001, the 

President issued Executive Order 13211 

on regulations that significantly affect 

energy supply, distribution, or use. This 

Executive Order requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions. As 

this rule is not expected to significantly 

affect energy supply, distribution, or 

use, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

List of Subjects in 50 CFR Part 21 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

■ For the reasons described in the 

preamble, we amend title 50, chapter I, 

subchapter B of the Code of Federal 

Regulations as follows: 

PART 21—[AMENDED] 

■ 1. The authority citation continues to 

read as follows: 

Authority: Migratory Bird Treaty Act, 40 

Stat. 755 (16 U.S.C. 703); Public Law 95–616, 

92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 

106–108, 113 Stat. 1491, Note following 16 

U.S.C. 703. 

■ 2. Amend § 21.3 by adding the 

following definitions, in alphabetical 

order: 

§ 21.3 Definitions. 

* * * * * 

Armed Forces means the Army, Navy, 

Air Force, Marine Corps, Coast Guard, 

and the National Guard of any State. 

* * * * * 

Conservation measures, as used in 

§ 21.15, means project design or 

mitigation activities that are reasonable 

from a scientific, technological, and 

economic standpoint, and are necessary 

to avoid, minimize, or mitigate the take 

of migratory birds or other adverse 

impacts. Conservation measures should 

be implemented in a reasonable period 

of time. 

* * * * * 

Military readiness activity, as defined 

in Pub. L. 107–314, § 315(f), 116 Stat. 

2458 (Dec. 2, 2002) [Pub. L. § 319 (c)(1)], 

includes all training and operations of 

the Armed Forces that relate to combat, 

and the adequate and realistic testing of 

military equipment, vehicles, weapons, 

and sensors for proper operation and 

suitability for combat use. It does not 

include (a) routine operation of 

installation operating support functions, 

such as: administrative offices; military 

exchanges; commissaries; water 

treatment facilities; storage facilities; 

schools; housing; motor pools; 

laundries; morale, welfare, and 

recreation activities; shops; and mess 

halls, (b) operation of industrial 

activities, or (c) construction or 

demolition of facilities listed above. 

Population, as used in § 21.15, means 

a group of distinct, coexisting, 

conspecific individuals, whose breeding 

site fidelity, migration routes, and 

wintering areas are temporally and 

spatially stable, sufficiently distinct 

geographically (at some time of the 

year), and adequately described so that 

the population can be effectively 

monitored to discern changes in its 

status. 

* * * * * 

Secretary of Defense means the 

Secretary of Defense or any other 

national defense official who has been 

nominated by the President and 

confirmed by the Senate. 

* * * * * 

Significant adverse effect on a 

population, as used in § 21.15, means an 

effect that could, within a reasonable 

period of time, diminish the capacity of 

a population of migratory bird species to 

sustain itself at a biologically viable 

level. A population is ‘‘biologically 

viable’’ when its ability to maintain its 

genetic diversity, to reproduce, and to 

function effectively in its native 

ecosystem is not significantly harmed. 

This effect may be characterized by 

increased risk to the population from 

actions that cause direct mortality or a 

reduction in fecundity. Assessment of 

impacts should take into account yearly 

variations and migratory movements of 

the impacted species. Due to the 

significant variability in potential 

military readiness activities and the 

species that may be impacted, 

determinations of significant 

measurable decline will be made on a 

case-by-case basis. 

■ 3. Amend part 21, subpart B, by 

adding a new § 21.15 as follows: 

§ 21.15 Authorization of take incidental to 

military readiness activities. 

(a) Take authorization and 

monitoring. 

(1) Except to the extent authorization 

is withdrawn or suspended pursuant to 

paragraph (b) of this section, the Armed 

Forces may take migratory birds 

incidental to military readiness 

activities provided that, for those 

ongoing or proposed activities that the 

Armed Forces determine may result in 

a significant adverse effect on a 

population of a migratory bird species, 

the Armed Forces must confer and 

cooperate with the Service to develop 

and implement appropriate 

conservation measures to minimize or 

mitigate such significant adverse effects. 

(2) When conservation measures 

implemented under paragraph (a)(1) of 

this section require monitoring, the 

Armed Forces must retain records of 

any monitoring data for five years from 

the date the Armed Forces commence 

their action. During Integrated Natural 

Resource Management Plan reviews, the 

Armed Forces will also report to the 

Service migratory bird conservation 

measures implemented and the 

effectiveness of the conservation 

measures in avoiding, minimizing, or 

mitigating take of migratory birds. 

(b) Suspension or Withdrawal of take 

authorization. 

(1) If the Secretary determines, after 

seeking the views of the Secretary of 

Defense and consulting with the 

Secretary of State, that incidental take of 

migratory birds during a specific 

military readiness activity likely would 

not be compatible with one or more of 


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8950 Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Rules and Regulations 

the migratory bird treaties, the Secretary 

will suspend authorization of the take 

associated with that activity. 

(2) The Secretary may propose to 

withdraw, and may withdraw in 

accordance with the procedures 

provided in paragraph (b)(4) of this 

section the authorization for any take 

incidental to a specific military 

readiness activity if the Secretary 

determines that a proposed military 

readiness activity is likely to result in a 

significant adverse effect on the 

population of a migratory bird species 

and one or more of the following 

circumstances exists: 

(i) The Armed Forces have not 

implemented conservation measures 

that: 

(A) Are directly related to protecting 

the migratory bird species affected by 

the proposed military readiness activity; 

(B) Would significantly reduce take of 

the migratory bird species affected by 

the military readiness activity; 

(C) Are economically feasible; and 

(D) Do not limit the effectiveness of 

the military readiness activity; 

(ii) The Armed Forces fail to conduct 

mutually agreed upon monitoring to 

determine the effects of a military 

readiness activity on migratory bird 

species and/or the efficacy of the 

conservation measures implemented by 

the Armed Forces; or 

(iii) The Armed Forces have not 

provided reasonably available 

information that the Secretary has 

determined is necessary to evaluate 

whether withdrawal of take 

authorization for the specific military 

readiness activity is appropriate. 

(3) When the Secretary proposes to 

withdraw authorization with respect to 

a specific military readiness activity, the 

Secretary will first provide written 

notice to the Secretary of Defense. Any 

such notice will include the basis for 

the Secretary’s determination that 

withdrawal is warranted in accordance 

with the criteria contained in paragraph 

(b)(2) of this section, and will identify 

any conservation measures or other 

measures that would, if implemented by 

the Armed Forces, permit the Secretary 

to cancel the proposed withdrawal of 

authorization. 

(4) Within 15 days of receipt of the 

notice specified in paragraph (b)(3) of 

this section, the Secretary of Defense 

may notify the Secretary in writing of 

the Armed Forces’ objections, if any, to 

the proposed withdrawal, specifying the 

reasons therefore. The Secretary will 

give due consideration to any objections 

raised by the Armed Forces. If the 

Secretary continues to believe that 

withdrawal is appropriate, he or she 

will provide written notice to the 

Secretary of Defense of the rationale for 

withdrawal and response to any 

objections to the withdrawal. If 

objections to the withdrawal remain, the 

withdrawal will not become effective 

until the Secretary of Defense has had 

the opportunity to meet with the 

Secretary within 30 days of the original 

notice from the Secretary proposing 

withdrawal. A final determination 

regarding whether authorization will be 

withdrawn will occur within 45 days of 

the original notice. 

(5) Any authorized take incidental to 

a military readiness activity subject to a 

proposed withdrawal of authorization 

will continue to be authorized by this 

regulation until the Secretary makes a 

final determination on the withdrawal. 

(6) The Secretary may, at his or her 

discretion, cancel a suspension or 

withdrawal of authorization at any time. 

A suspension may be cancelled in the 

event new information is provided that 

the proposed activity would be 

compatible with the migratory bird 

treaties. A proposed withdrawal may be 

cancelled if the Armed Forces modify 

the proposed activity to alleviate 

significant adverse effects on the 

population of a migratory bird species 

or the circumstances in paragraphs 

(b)(2)(i) through (iii) of this section no 

longer exist. Cancellation of suspension 

or withdrawal of authorization becomes 

effective upon delivery of written notice 

from the Secretary to the Department of 

Defense. 

(7) The responsibilities of the 

Secretary under paragraph (b) of this 

section may be fulfilled by his/her 

delegatee who must be an official 

nominated by the President and 

confirmed by the Senate. 

Dated: July 25, 2006. 

Matt Hogan, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

Dated: April 10, 2006. 

Philip W. Grone, 

Deputy Under Secretary of Defense 

(Installations and Environment). 

This document was received at the Office 

of the Federal Register on February 23, 2007. 

[FR Doc. E7–3443 Filed 2–27–07; 8:45 am] 

BILLING CODE 4310–55–P 


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