Migratory Bird Permits; Take of Migratory Birds by the Armed Forces

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 [Federal Register: February 28, 2007 (Volume 72, Number 39)]
[Rules and Regulations]
[Page 8931-8950]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe07-12]

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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:
    ? To manage migratory birds internationally;
    ? To ensure a variety of sustainable uses;
    ? To sustain healthy migratory bird populations for harvesting needs;
    ? To provide for, maintain, and protect habitat necessary
for the conservation of migratory birds; and
    ? To restore depleted populations of migratory birds.
    The Canada and Mexico treaties protect selected families of birds,
while the Japan and Russia treaties protect selected species of birds.
All four treaties provide for closed seasons for hunting game birds.
The list of the species protected by the MBTA appears in title 50,
section 10.13, of the Code of Federal Regulations (50 CFR 10.13).
    Under the MBTA, it is unlawful ``by any means or in any manner, to
pursue, hunt, take, capture, [or] kill'' any migratory birds except as
permitted by regulation (16 U.S.C. 703). The Secretary is authorized
and directed, from time to time, having due regard to the zones of
temperature and to the distribution, abundance, economic value,
breeding habits, and times and lines of migratory flight of such birds
to adopt suitable regulations permitting and governing the take of
migratory birds when determined to be compatible with the terms of the
treaties (16 U.S.C. 704). Furthermore, the regulations at 50 CFR 21.11
prohibit the take of migratory birds except under a valid permit or as
permitted in the implementing regulations. The Service has defined
``take'' in regulation to mean to ``pursue, hunt, shoot, wound, kill,
trap, capture, or collect'' or to attempt these activities (50 CFR 10.12).
    On July 18, 2000, the United States Court of Appeals for the
District of Columbia ruled in Humane Society v. Glickman, 217 F.3d 882
(D.C. Cir. 2000), that Federal agencies are subject to the take
prohibitions of the MBTA. The United States had previously taken the
position, and two other courts of appeals held or suggested, that the
MBTA does not by its terms apply to Federal agencies. See Sierra Club
v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997); Newton County Wildlife
Ass'n v. U.S. Forest Service, 113 F.3d 110, 115 (8th Cir. 1997).
Subsequently, on December 20, 2000, we issued Director's Order 131 to
clarify the Service's position that, pursuant to Glickman, Federal
agencies are subject to the permit requirements of the Service's
existing regulations.
    Because the MBTA is a criminal statute and does not provide for
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.

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

PART 21--[AMENDED]

? 1. The authority citation continues to read as follows:

    Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C.
703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public
Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703.

? 2. Amend 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.

? 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
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