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U.S. Fish and Wildlife Service Proposes Rule to Allow Defense Department to Take Migratory Birds



May 28, 2004

Nicholas Throckmorton, 202/208-5636


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 by July 30, 2004. The proposed rule and other related documents can be downloaded at http// 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 544 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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