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Office of Public Affairs
1849 C Street, NW
Washington, DC 20240
202-208-5634 Fax: 202-219-2428

May 28, 2004

Contact: Nicholas Throckmorton, 202.208.5636

U.S. FISH AND WILDLIFE SERVICE PROPOSES RULE TO ALLOW DEFENSE DEPARTMENT TO TAKE MIGRATORY BIRDS

The U.S. Fish and Wildlife Service will propose a rule that will allow the Department of Defense (DOD) to incidentally take migratory birds during military readiness training as directed by the 2003 National Defense Authorization Act. The proposed rule will print in the Federal Register on June 2, 2004.

"Protecting our nation, including its natural resources, is of utmost importance to Americans," said Service Director Steve Williams. "The Departments of the Interior and Defense have worked together to ensure the proper management of migratory birds while providing the military the ability to conduct important training for our men and women in uniform."

The proposed regulations require the Department of Defense to assess the adverse effects of military readiness activities on migratory birds in accordance with the National Environmental Policy Act. They also require the DOD to develop appropriate conservation measures if a proposed action may have a significant adverse effect on a population of migratory bird species of concern. In addition, the proposal requires the Department of Defense to monitor the effects of such military readiness activities on migratory bird species of concern and the effectiveness of conservation measures.

"Many of these activities are already included in military installation Integrated Natural Resources Management Plans," said the Assistant Deputy Under Secretary of Defense for Environment, Safety and Occupational Health, Alex A. Beehler. "The Department of Defense has been an active participant in international bird conservation initiatives for more than a decade, including Partners in Flight and the more recent North American Bird Conservation Initiative. Military lands frequently provide some of the best remaining habitat for bird species of concern, and we will continue our leadership role in bird conservation partnerships."

The Migratory Bird Treaty Act directs the Fish and Wildlife Service to ensure the perpetuation of migratory bird populations and their habitats. Under the provisions of the Act, no one may take, pursue, hunt, capture, kill, attempt to take, capture, or kill, possess, sell, purchase, barter, or offer for sale, import, export, or transport any migratory bird, or their parts including feathers, nests, or eggs, except under the terms of a valid permit issued pursuant to Federal regulations. Migratory birds include all species covered by the four migratory bird treaties with Canada (1916), Mexico (1936), Japan (1972) and the former Russian Federation (1976). This includes all native birds in the United States, except non-migratory game species such as quail and turkey that are managed by the states.

The Migratory Bird Treaty Act uses federal permits as a tool to assist in the conservation of migratory birds to authorize otherwise prohibited activities for scientific, educational, cultural, and other purposes.

Following a U.S. District Court decision on live fire military training, Congress enacted the 2003 National Defense Authorization Act, which authorized an interim period during which the prohibitions on incidental take of migratory birds would not apply to military readiness activities. During this interim period, Congress also directed the Secretary of Interior to promulgate a regulation to deal with the incidental take of migratory birds in conjunction with military readiness activities from the take prohibition of the Migratory Bird Treaty Act.

On December 2, 2002, the President signed the 2003 National Defense Authorization Act. The Act provides that the Secretary of the Interior shall exercise her authority under the Migratory Bird Treaty Act to prescribe regulations for the Armed Forces for the incidental taking of migratory birds during military readiness activities authorized by the Secretary of Defense. The regulations have concurrence of the Secretary of Defense.

Please send comments on the proposed rule to the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 4107, Arlington, Virginia 22203-1610 or comment on-line at <DODMBTARULE@fws.gov> by July 30, 2004. The proposed rule and other related documents can be downloaded at <http://migratorybirds.fws.gov>. For further information, please contact us at 703-358-1714.

The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Service manages the 95-million-acre National Wildlife Refuge System, which encompasses 542 national wildlife refuges, thousands of small wetlands and other special management areas. It also operates 69 national fish hatcheries, 64 fishery resources offices and 81 ecological services field stations. The agency enforces federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Aid program, which distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to state fish and wildlife agencies.

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For more information about the U.S. Fish and Wildlife Service,
visit our home page at http://www.fws.gov

Questions and Answers Regarding Department of Defense Take Authorization
under the Migratory Bird Treaty Act

1) What are the prohibitions under the Migratory Bird Treaty Act?

Under provisions of the Migratory Bird Treaty Act, no one may take, pursue, hunt, capture, kill, attempt to take, capture, or kill, possess, sell, purchase, barter, or offer for sale, import, export, or transport any migratory bird. This includes their parts including feathers, nests, or eggs except under the terms of a valid permit issued pursuant to Federal regulations. Migratory birds include all species covered by the four migratory bird treaties with Canada (1916), Mexico (1936), Japan (1972) and the Russian Federation (1976). This includes all native birds in the United States, except those non-migratory species such as quail and turkey that are managed game by the states. By treaty, the Service currently recognizes 831 species of migratory birds, of which 776 are not hunted and are classified as non-game and 55 are classified as game species.

As with many other conservation laws, the Migratory Bird Treaty Act uses federal permits as a tool to assist in the conservation of migratory birds and to authorize otherwise prohibited activities for scientific, educational, cultural, and other purposes. Pursuant to this provision, the U.S. Fish and Wildlife Service can issue permits to qualified applicants for the following activities involving migratory birds: Import/Export, Scientific Collecting, Taxidermy, Waterfowl Sale and Disposal, Falconry, Raptor Propagation, Depredation, Rehabilitation, and Special Purpose (including salvage and education).

2) Why did Congress give the Department of Defense a one-year authorization for incidental take from the Migratory Bird Treaty Act?

In July 2000, the United States Court of Appeals for the District of Columbia ruled that Federal agencies are subject to the take prohibitions of the Migratory Bird Treaty Act. In May 2002, the Center for Biological Diversity obtained an injunction prohibiting live fire military training exercises of the Department of the Navy that killed migratory birds on the island of Farallon de Medinilla in the Pacific Ocean. In December 2002, following a series of legal determinations on the case from the District Court for the District of Columbia and the Circuit Court, Congress authorized an interim period during which the prohibitions on incidental take of migratory birds would not apply to otherwise authorized military readiness activities.

3) Why does the authorization pertain only to military readiness activities?

Congress believed the authorization to be an appropriate balance between the needs of national security and those of bird conservation. The 2003 Defense Authorization Act conference report notes specifically that Congress found the authorization for incidental take to be consistent with the underlying treaty obligations of the United States.

Department of Defense activities other than military readiness will be addressed in a Memorandum of Understanding between the Department of Defense and the U.S. Fish and Wildlife Service, as required by Executive Order13186, "Responsibilities of Federal Agencies to Protect Migratory Birds."

4) Will the authorization pertain to all migratory birds covered by MBTA?

Yes. However, under the proposed rule, the Department of Defense is only required to confer with the U.S. Fish and Wildlife Service, when they determine that a military readiness activity may adversely affect the long term sustainability of a population of a migratory bird species of concern. Thus, only those species whose populations are most vulnerable are required to be addressed in implementing military readiness activities.

Species of concern are defined as those species listed in the periodic report Birds of Conservation Concern published by the U.S. Fish and Wildlife Service; priority migratory bird species documented in the comprehensive bird conservation plans (i.e., North American Waterbird Conservation Plan, United States Shorebird Conservation Plan, Partners in Flight Bird Conservation Plans); 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; and Migratory Bird Treaty Act birds below desired population sizes.

5) Is the proposed rule going to result in less protection for migratory birds from military readiness activities than what currently occurs through existing environmental review processes?

No. The Department of Defense will still be required under the National Environmental Policy Act to consider the environmental effects of its actions, to assess the adverse effects of military readiness activities on migratory birds and to develop appropriate conservation measures if a proposed action may have a significant adverse effect on a population of migratory bird species of concern. When conservation measures are implemented to avoid or minimize impacts on populations of migratory bird species of concern, the Department of Defense is also required to monitor the effects of military readiness activities on migratory bird species of concern and the efficacy of any executed conservation measures.

Both the Department of the Interior and the Department of Defense recognize that 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 Department of the Interior and Department of Defense also recognize that the protection of migratory birds should be given consideration when planning and executing military readiness activities, but not at the expense of diminishing the effectiveness of such activities.

The Department of the Interior and the Department of Defense expect that the potential for military readiness activities to result in a significant negative impact on a population of migratory bird species of concern will be minimal, particularly if they implement conservation measures to minimize or avoid impacts on migratory birds. In addition, the Department of Defense, as with other Federal agencies, has a special role in ensuring the United States complies with its obligations under the four migratory bird treaties, as evidenced by Executive Order 13186, "Responsibilities of Federal Agencies to Protect Migratory Birds", signed January 10, 2001.

6) What are the Department of Defense requirements under the Migratory Bird Treaty Act relative to activities other than military readiness?

Migratory bird conservation relative to Department of Defense activities other than military readiness activities will be addressed separately in a Memorandum of Understanding developed in accordance with Executive Order 13186, signed January 10, 2001, "Responsibilities of Federal Agencies to Protect Migratory Birds". Upon completion of the Memorandum of Understanding, and in keeping with the intent of the Executive Order for Federal agencies to promote the conservation of migratory bird populations, the U.S. Fish and Wildlife Service proposes issuing a Special Purpose Permit to address specific actions identified in the Memorandum of Understanding not covered by this rule.

In accordance with the Executive Order, the following responsibilities are discussed in the draft Memorandum of Understanding. The Department of Defense is required to obtain permits for import and export, banding, scientific collection, taxidermy, special purposes, falconry, raptor propagation, and depredation activities. The Department of Defense must avoid or minimize impacts to migratory birds, including incidental take and the pollution or detrimental alteration of the environments used by migratory birds. The Department of Defense must develop, strive to implement, and periodically evaluate conservation measures for management actions to avoid or minimize incidental take of migratory birds, and, if necessary, confer with the U.S. Fish and Wildlife Service on revisions to these conservation measures. The Department of Defense must also work migratory bird management objectives into the Integrated Natural Resources Management Plans for lands they manage.

Both the Department of the Interior and Defense Department hope to have a signed Memorandum of Understanding per Executive Order 13186 by fall 2004.

7) What will the Department of Defense be required to do as a result of this proposal?

They must confer with the U.S. Fish and Wildlife Service on the development of conservation measures to minimize or mitigate adverse effects of a military readiness activity if the Department of Defense determines that such activity may have a significant adverse effect on the sustainability of a population of migratory bird species of concern. This proposal also requires the Department of Defense to monitor the impacts of military readiness activities on affected migratory bird species of concern. It will apply to military readiness training wherever it occurs (land, air and sea). The proposed rule will not alter the Department of Defense responsibilities to comply with other applicable regulations.

8) Why is the Secretary of the Interior required to seek the views of the Secretary of Defense and consult with the Secretary of State, prior to suspending an authorization?

The Secretary of the Interior is required by the proposal to suspend a Department of Defense authorization if the Department of Defense activity is not in compliance with any of the migratory bird treaties. Because the issue of whether an activity is in compliance with a treaty involves foreign policy considerations and legal interpretations of treaty obligations, a determination as to whether such a violation has occurred requires coordination among the several executive departments with particular expertise in these matters.

9) What are the migratory bird treaties?

The migratory bird treaties, or conventions, are a series of treaties for the protection of birds that migrate between the United States and the countries with which we have signed the treaties. The 1916 Convention with Great Britain (for Canada) for the Protection of Migratory Birds (amended 1999), provided the basis for the development of enforceable regulations that were authorized by the Migratory Bird Treaty Act of 1918 and assigned to the Biological Survey (the predecessor of the Fish and Wildlife Service) for implementation. Subsequent treaties were signed with Mexico (1936, amended 1972, 1995), Japan (1972), and the Soviet Union (now Russia) (1976). Each of these treaties protects selected species of birds and specifies closed seasons for hunting game birds and subsistence harvest for indigenous populations. The treaties, with the exception of the Mexico treaty, also address take of migratory birds for scientific and propagation purposes.

10) How will a determination be made that a proposed military readiness activity may not be in compliance with one or more of the migratory bird treaties?

Collectively, the four migratory bird treaties provide mechanisms for protecting migratory birds and their habitat, and include special emphasis on protecting those birds that are in danger of extinction. The conservation principles of the treaties include the following:

     To conserve and manage migratory birds internationally;

     To sustain healthy migratory bird populations for consumptive and nonconsumptive uses;

     To provide for, maintain, and protect habitat necessary for the conservation of migratory birds; and

     To restore depleted populations of migratory birds.

The treaties include prohibitions against the take of migratory birds although they were not intended to prohibit all take of birds. The treaties with Japan and the Soviet Union have broadly worded prohibitions against take and recognize a variety of purposes for which take may be authorized including "for specific purposes not inconsistent with the objectives" of the treaties. The treaties with Canada and Mexico have a narrower focus on take prohibitions and are more clearly directed at stopping the indiscriminate killing of migratory birds from hunting.

The standard for determining whether a treaty has been violated will be based upon whether the activity is in keeping with the principles and objections of the treaties and is not specifically prohibited under the treaties. Any determination that a proposed military readiness activity would not be compatible with one or more of the treaties will be made only after the Secretary of the Interior carefully considers this country’s obligations under each treaty and after the Secretary seeks the views of the Secretary of Defense and consults with the Secretary of State.

11) How will a determination be made that a proposed military readiness activity may be significantly adversely affecting the long-term sustainability of a migratory bird species of concern?

As used in this proposed rule, significant adverse effect on the sustainability of a population means an effect that could result in a population no longer being maintained at a "biologically viable level for the long term." A population is "biologically viable for the long term" when its ability to maintain its genetic diversity, to reproduce, and to perform its role or function in its native ecosystem are not irreversibly harmed.

The Department of Defense will consider the environmental impacts of a proposed military readiness activity through the National Environmental Policy Act (NEPA) process using the best scientific data available. The Department of Defense will make this information available for public review in accordance with NEPA. If the Department of Defense determines that a proposed or ongoing activity is likely to result in a significant adverse effect on the sustainability of a population of a migratory bird species of concern, they must confer and cooperate with the Service to develop appropriate conservation measures to minimize or mitigate such significant adverse effects.

12) As described in the 2003 National Defense Authorization Bill, the one-year period for the Secretary of Interior to prescribe regulations authorizing the Armed Forces to incidentally take migratory birds, has passed. Is the Department of Defense currently authorized to incidentally take migratory birds?

Yes. The conference report on the 2003 National Defense Authorization Act noted that the interim authority to take migratory birds during military readiness activities would not expire until the regulations took effect.

13) Will the Department of the Interior address other requests for incidental take authorizations under the Migratory Bird Treaty Act?

The Department of the Interior has no plans to address other request at this time, though the Department is aware of incidental take concerns.

14) Will Department of Defense facilities need to complete section 7 consultations with the Service for military readiness activities that may affect species of migratory birds that are listed as threatened or endangered under the Endangered Species Act?

Yes. The proposed rule would not alter Department of Defense responsibilities to consult under section 7 of the Endangered Species Act.

15) How may the public comment on the proposed rule?

Comments on the proposed rule should be sent to the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 4107, Arlington, Virginia 22203-1610 or comment on-line at <DODMBTARULE@fws.gov> by July 30, 2004. The proposed rule and other related documents can be downloaded at <http://migratorybirds.fws.gov>. For further information, please contact us at 703-358-1714.

 

 

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