[Federal Register Volume 72, Number 39 (Wednesday, February 28, 2007)]
[Rules and Regulations]
[Pages 8931-8950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3443]


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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.

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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

[[Page 8932]]

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:
    <bullet> To manage migratory birds internationally;
    <bullet> To ensure a variety of sustainable uses;
    <bullet> To sustain healthy migratory bird populations for 
harvesting needs;
    <bullet> To provide for, maintain, and protect habitat necessary 
for the conservation of migratory birds; and
    <bullet> 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 
citizen-suit 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

[[Page 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

[[Page 8934]]

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 Sec.  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 over-wintering 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 
Sec.  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

[[Page 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. 670a-670o), 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 Sec.  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

[[Page 8936]]

``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 Sec.  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 Sec.  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 Sec.  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 Sec.  21.15(b)(2), 
(4) and (5).
    Comment: The statutory language of the Defense Authorization Act 
says

[[Page 8937]]

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 
Sec.  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 Sec.  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 Sec.  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

[[Page 8938]]

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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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

[[Page 8939]]

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.

[[Page 8940]]

    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 Sec.  
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 Sec.  
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

[[Page 8941]]

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.nabci-us.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

[[Page 8942]]

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 least-
hazardous 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 pest-management 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.

[[Page 8943]]

    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 habitat-association 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 decision-making 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

[[Page 8944]]

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

[[Page 8945]]

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 stop-over areas, and wintering 
habitats.

[[Page 8946]]

    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

[[Page 8947]]

(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

[[Page 8948]]

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

[[Page 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-to-
Government 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.

0
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]

0
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.

0
2. Amend Sec.  21.3 by adding the following definitions, in 
alphabetical order:


Sec.  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 Sec.  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, Sec.  
315(f), 116 Stat. 2458 (Dec. 2, 2002) [Pub. L. Sec.  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 Sec.  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 Sec.  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.

0
3. Amend part 21, subpart B, by adding a new Sec.  21.15 as follows:


Sec.  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

[[Page 8950]]

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